OCM(2020)35818 - 18/12/2020
The
Director-General
Ms Emma BESWICK
English Digital Team
First floor
56 Quai Rambaud,
69002 Lyon
FRANCE
ask+request-8543-
xxxxxxxx@xxxxxxxx.xxx
Via e-mail
Brussels
Subject:
Your confirmatory application for public access to documents
Case No OF/2016/0462/A2 (Please include this number in all correspondence)
Dear Ms BESWICK,
I refer to your confirmatory application made by e-mail dated 20/11/2020 and registered
in OLAF on the same day under reference OCM(2020)32112. You requested the review of
OLAF's position stated in its letter dated 21/10/2020 and registered under reference
OCM(2020)28523, concerning your request for public access to documents under Regulation
(EC) No 1049/20011.
Your confirmatory application for public access to documents was carefully considered and
a detailed response follows.
1. Your initial and confirmatory applications
On 10/09/2020, you submitted an initial application for public access to documents under
Regulation (EC) No 1049/2001, in which you have requested public access to the following
documents:
“
documents which contain the following information:
What NGO is being referred to on page 14/15 of the OLAF Report 2019
(https://ec.europa.eu/anti-fraud/sites/an...) in the section SIPHONING OFF MONEY FROM
SYRIA?
OLAF describes a "high-profile case" concerning "a well-known non-governmental
organisation (NGO) involved in supporting EU humanitarian aid efforts in Syria" where
"investigators found evidence of corruption by two former staff members of the NGO". “
1 OJ L 145, 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
In its reply dated 21/10/2020, OLAF refused public access to the documents containing the
information you had requested. OLAF explained that those documents related to an
investigation carried out by OLAF and are, therefore, covered by a general presumption of
non-disclosure recognised by settled EU case-law2, according to which the disclosure to the
public under Regulation (EC) 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.
In your confirmatory application, you reiterate your request for access to the same
documents. In that regard, you specify that you are “
solely requesting the name of the NGO
that is being referred to on page 14 of this report ("a well-known non-governmental
organisation (NGO) involved in supporting EU humanitarian aid efforts in Syria"), not the
names of sources, witnesses or other persons concerned”, and you state that “
this mitigates
the risk of potential harm to the people involved in the investigation”.
In addition, you put forward the following arguments in support to your request:
“
I believe there is a strong public interest in disclosing this information that outweighs the
reasons you put forward in your response. This goes beyond the general public interest in
transparency, in an era where trust is paramount.
I appreciate that 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 but in this case, I believe the public interest outweighs this risk of harm, which
is
either
non-existent
or
very
low
for
the
aforementioned
reason.
These are the reasons it is in the public interest to disclose the requested information:
1) As well as receiving finance from the EU, this NGO will be funded by donations from the
public and those who donate to the organisation have the right to know so that they can
make an informed decision about to whom they give their hard-earned money.
2) If such information were withheld from the public, this could lead to mistrust in NGOs in
general and negatively impact those that were not implicated in corruption concerning aid
in Syria, harming their chances of raising much-needed funds. This, in turn, could mean
less funding to help those who are in desperate need of it in Syria - an extremely vulnerable
group in the general public.”
2. Preliminary remarks
The purpose of Regulation (EC) No 1049/2001 is to give access to documents held by
EU institutions 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, documents disclosed under this
Regulation are to be considered publicly available.
In this context, OLAF would like to recall that the EU legislator has provided for the
confidentiality of information collected by OLAF in the framework of its investigations. The
obligation to treat all information obtained during its investigation as confidential and
subject to professional secrecy stems, in particular, from Article 339 of the Treaty on the
functioning of the European Union, Article 10 of Regulation (EU, Euratom) No 883/20133
and Article 17 of the Staff Regulations.
2 See judgments of the General Court of 26 April 2016,
Strack v Commission, T-221/08, EU:T:2016:242,
paragraphs 150 to 162 and Judgment of the General Court of 26 May 2016,
IMG v Commission, T-110/15,
ECLI:EU:T:2016:322, paragraph 36.
3 OJ L 248, 18.9.2013, p. 1, as amended OJ L 317, 23.11.2016, p. 1.
2
3. Assessment of the documents under Regulation (EC) 1049/2001 - relevant
applicable exceptions – presumption of non-accessibility
Having carefully considered your confirmatory application, OLAF regrets to inform you that
your application cannot be granted, based on the following considerations.
As already explained in reply to your initial application, the documents which you seek to
obtain are part of the investigation file no OF/2016/0462/A2. Therefore, they are covered
by the exceptions under Article 4(2) first and third indent and Article 4(3) second paragraph
of Regulation (EC) No 1049/2001, which stipulate that the institutions shall refuse access
to a document where disclosure would undermine the protection of the commercial interests
of a natural or legal person or the purpose of inspections, investigations and audits, or would
seriously undermine the institution's decision-making process, unless there is an overriding
public interest in disclosure. These exceptions are applicable to the documents in their
entirety, including also to those parts containing information about the identity of the legal
person, which is a person concerned in OLAF’s investigation. Finally, the documents which
you seek to obtain are also covered by the exception of Article 4(1)(b) of Regulation (EC)
No 1049/2001 (protection of privacy and integrity of the individual).
3.1 Protection of the purpose of inspections, investigations and of the
decisionmaking process
The General Court has recognised a general presumption of non-accessibility for all
documents in OLAF case files4. The Court considers that the disclosure to the public under
Regulation (EC) No 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.
That presumption is based on the consideration that, to determine the application of
Regulation (EC) No 1049/2001, account must be taken of relevant sectoral rules governing
the administrative procedure under which the documents requested under Regulation (EC)
No 1049/2001 were gathered5.
Regulation (EU, Euratom) No 883/2013, which governs OLAF's administrative activity
provides for the obligation of confidentiality with regard to all information gathered during
investigations. The following provisions of that Regulation regulate and restrict the use of
information in OLAF investigation files, before, during and after an OLAF investigation:
Article 4 (internal investigations); Article 5 (opening of investigations); Article 6 (access to
information in database prior to the opening of an investigation); Article 7 (investigations
procedure); Article 8 (Duty to inform OLAF); Article 9 (procedural guarantees); Article 10
(confidentiality and data protection); Article 11 (investigation report and action to be taken
following investigations); Article 12 (Exchange of information between OLAF and the
competent authorities of Member States); Article 13 (cooperation between OLAF and
Eurojust and Europol); Article 14 (cooperation with third countries and international
organisations); Article 15 (Supervisory Committee), Article 16 (exchange of views with the
institutions), and Article 17 (Director-General).
In view of that regulatory context, the Court held that allowing public access to any part of
OLAF investigation documents would be particularly detrimental to OLAF’s ability to fulfil its
mission of fight against fraud in the public interest because they directly relate to the
investigation activities aiming at gathering evidence and verifying allegations. The
disclosure of these documents would seriously affect the decision-making process of OLAF,
4 See judgments in
Strack v
Commission, T-221/08, cited above, paragraphs 150 to 162 and
IMG v
Commission,
T-110/15, cited above, paragraph 36.
5 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 in
IMG v Commission, T-110/15, cited above, paragraphs
29-34.
3
as it would seriously jeopardize the full independence of future OLAF investigations and
their objectives by revealing OLAF’s strategy and working methods. It could also discourage
individuals to send information concerning possible fraud, thus depriving OLAF of useful
information to initiate investigations aiming at protecting the financial interests of the Union.
They must be reassured that their statements will be kept confidential. Otherwise, they
might be inclined to censor the information they give or to hold back sensitive information6.
The specific confidentiality rules regarding the documents related to OLAF investigations are
justified not only in so far as OLAF collects, as part of such an investigation, sensitive
business secrets and highly sensitive information on individuals whose disclosure could
significantly harm their reputation, but also to the extent that the access to documents
relating to an investigation by OLAF, even after the conclusion of the investigation in
question might, as explained above, seriously hamper the work of OLAF, disclose the
methodology and strategy, harm the availability of those involved in the procedure to
collaborate in the future and, therefore prejudice the proper functioning of the investigations
in question and the achievement of their objectives.
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 (e.g. persons concerned, witnesses, informants), so that the
information they provide is used only for the purposes of the investigation. The protection
of confidentiality extends to closed cases7.
In this case, the documents containing the requested information are part of an OLAF
investigation file and are thus covered by the above-mentioned general presumption of
confidentiality. Even if OLAF’s investigation has been closed with a recommendation to the
European Commission, to recover the EU funds unduly paid to the NGO in question, the
recovery procedure is ongoing and OLAF is still monitoring the follow-up activities triggered
by its recommendation.
Having regard to the above, I consider that the use of the exceptions under Article 4(2),
third indent (protection of the purpose of investigations) and Article 4(3) second paragraph
(protection of the decision-making process) of Regulation (EC) No 1049/2001 is justified,
and that access to the documents in question must be refused on that basis.
3.2. Protection of commercial interests
In addition, according to EU case law, documents linked to an OLAF investigation, including
the identity of the persons concerned by that investigation, enjoy the protection of
confidentiality and are covered by the exception of the protection of commercial interests,
as OLAF collects, in the context of its investigations, sensitive company secrets and highly
sensitive information on (legal) persons concerned, whose disclosure could seriously
damage their reputation8.
In this case, the documents in OLAF’s case file, in particular the final report and
recommendation, refer to the investigation carried out by OLAF, and to allegations of misuse
of EU funds by the NGO, which was a person concerned in the investigation. They also refer
to the public procurement procedures in which the NGO was involved, to the contracts
awarded and to how they were implemented. Disclosing this sensitive and confidential
information, including the name of the legal person that was a person concerned in the
investigation, could have a negative effect on the image of that legal person, and could
create possible misrepresentations about it. Therefore, disclosing its identity would damage
its reputation and would undermine the protection of its commercial interests. Public
disclosure of this information would indeed deprive it of its ability to exercise its activities
effectively. OLAF cannot elaborate any further on the underlying justification without
6 See judgement in
Agrofert Holding v Commission, C-477/10 P, cited above, paragraph 66.
7
Strack v
Commission, T-221/08, cited above, paragraphs 150 to 164.
8 See, in that regard, judgment in
Strack v
Commission, T-221/08, cited above, paragraphs 207 to 211.
4
revealing the contents of the sensitive information contained in the documents in its
investigation file and without thereby depriving the applicable exception for the protection
of commercial interests of its very purpose.
Having regard to the above, I consider that the use of the exception under Article 4(2), first
indent of Regulation (EC) No 1049/2001 (protection of commercial interests) is justified,
and that access to the documents in question, including the identity of the legal person
concerned in OLAF’s investigation, must be refused on that basis.
3.3 Protection of privacy and the integrity of the individual
Finally, 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.
The documents contain the names of the NGO’s staff and information that refers to the
identification of these persons. They also contain names of OLAF staff. This information
cannot be released to the public at large, on the basis of the exception laid down in Article
4(1)(b) of Regulation (EC) No 1049/2001. This article provides that ‘[t]
he institutions shall
refuse access to a document where disclosure would undermine the protection of [...]
privacy and the integrity of the individual, in particular in accordance with Community
legislation regarding the protection of personal data’.
In its judgment in Case C-28/08 P (Bavarian Lager)9, the Court of Justice ruled that, when
a request is made for access to documents containing personal data, Regulation (EC) No
45/2001 (now replaced by, Regulation (EU) 2018/172510) becomes fully applicable.
Pursuant to Article 9(1)(b) of Regulation (EU) 2018/1725,
‘personal data shall only be
transmitted to recipients established in the Union other than Union institutions and bodies
if ‘[t]he recipient establishes that it is necessary to have the data transmitted for a specific
purpose in the public interest and the controller, where there is any reason to assume that
the data subject’s legitimate interests might be prejudiced, establishes that it is
proportionate to transmit the personal data for that specific purpose after having
demonstrably weighed the various competing interests’.
In your confirmatory application, you specify that you are solely requesting the name of the
NGO referred to in OLAF Report 2019, and not the names of sources, witnesses or other
persons concerned. Therefore, OLAF does not have to examine whether there is a reason
to assume that the data subjects’ legitimate interests might be prejudiced.
In consequence, the use of the exception under Article 4(1)(b) of Regulation 1049/2001 is
justified.
Having regard to all the above, the documents requested are exempt, in principle and in
full, from disclosure to the public unless you demonstrate that the general presumption of
confidentiality is not applicable because an overriding public interest justifies the disclosure
of the requested documents. This aspect will be dealt with under point 5 below.
4. Partial Access
9 Judgment of the Court of Justice of 29 June 2010,
Commission v The Bavarian Lager Co. Ltd, C-28/08 P,
EU:C:2010:378, paragraph 59.
10 OJ L 295, 21.11.2018, p. 39–98.
5
As regards partial access, the general presumption referred to above indicates that the
documents covered by it do not fall within an obligation of disclosure, in full or in part, of
their content11. There is therefore no need for OLAF to examine the possibility of granting
partial access to the requested documents in accordance with Article 4(6) of Regulation (EC)
No 1049/2001.
In any event, 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 (protection of the purpose of inspections, investigations and audits) and of Article
4(3) second sentence (protection of the decision–making process) of Regulation (EC)
1049/2001.
5. Overriding public interest in disclosure
The exceptions laid down in Article 4(2) and 4(3) of Regulation (EC) 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. It is for the applicant to show that there
is an overriding public interest in disclosure12.
In addition, general considerations such as the principle of transparency and its importance
cannot provide an appropriate basis for establishing that the principle of transparency is in
some sense especially pressing and capable, therefore, of prevailing over the reasons
justifying the refusal to disclose the documents in question13.
Moreover, the public interest in accessing a document based on the principle of transparency
is not as relevant for an administrative document (such as documents related to a specific
investigation) as for a document where the EU institution acts as legislator. According to
the case law of the Court, the administrative activity of the Commission does not require
the same extent of access to documents as required by the legislative activity of a Union
institution14.
It is in the light of the above considerations that your arguments claiming that there is an
overriding public interest in disclosing the requested documents must be examined.
In your confirmatory application, you consider that such overriding public interest in
disclosure exists, given that the NGO in question is funded by donations from the public.
Therefore, the donors have, in your view, the right to know the name of the NGO so that
they can make an informed decision about to whom they give their money. In addition, you
argue that withholding this information from the public could lead to mistrust in NGOs in
general and negatively affect those that were not implicated in corruption concerning aid in
Syria, harming their chances of raising funds. This, in turn, could mean less funding to help
those who are in need of it in Syria, that is, an extremely vulnerable group in the public.
OLAF understands your arguments as referring to the general principle of transparency of
EU institutions. While the situation in Syria is certainly difficult for the vulnerable people
that need help, OLAF wishes to reiterate that public disclosure of OLAF's investigation
documents might create serious misconceptions on the part of the public. Apart from
causing harm to OLAF's investigative function, it could also undermine the protection of
legitimate interests of persons concerned, witnesses and staff of the Office.
11 Judgment of the Court of Justice of 28 June 2012,
Commission v Odile Jacob, Case C-404/10 P, EU:C:2012:393,
paragraph 133.
12 Judgement of the Court of 2 October 2014,
Strack v Commission, C-127/13 P, EU:C:2014:2250, paragraph 128,
with further reference, and paragraphs 129 and 131; judgment of the General Court of 15 September 2016,
Herbert
Smith Freehills v Council, T-755/14, EU:T:2016:482, paragraph 74, with further references; see also the references
quoted in judgment of the General Court of 13 November 2015,
ClientEarth v Commission, Joined Cases T-424/14
and T-425/14, EU:T:2015:848, paragraph 137.
13
Strack v Commission, case T-221/08, cited above, paragraph 167.
14 Judgement of the Court of 27 February 2014,
Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraph 91.
6
Against this background, OLAF considers that the confidentiality of its investigations, as
provided for in Regulation (EU, Euratom) No 883/2013, protects the fundamental rights of
the persons under investigation. In other words, the public interest in disclosure must be
balanced against fundamental principles of the EU legal order, such as the presumption of
innocence.
In addition, in cases such as this one, the rules that govern the disclosure to the public of
documents held by the EU institutions recognize that, at times, the public interest is best
served by not releasing documents, if doing so would damage an OLAF investigation, or any
follow-up measures that are being considered based on it, also intended to protect the public
interest.
In that regard, it is also important to note that, according to established EU case law, OLAF’s
reports and recommendations drawn up following an external or internal investigation and
sent to the competent follow-up authorities are only recommendations or opinions which
have no binding legal effects15. It follows from the provisions of Regulation (EU, Euratom)
No 883/2013, and particularly from recital 31 and Article 11 of that regulation, that OLAF’s
conclusions contained in a final report cannot lead automatically to the initiation of judicial
or disciplinary proceedings, since the competent authorities, to which the report of the
external or internal investigation is sent, are free to decide what action should be taken on
the final report and are accordingly the only authorities having the power to adopt decisions
capable of affecting the legal position of those persons in relation to which the report
recommended that such proceedings be instigated16. A report drawn up by OLAF following
its internal and external investigations does not significantly change the legal situation of
the persons named in that report, any more than the forwarding of information to the
national authorities or to the EU authorities.
The EU case law also indicates that the competent follow-up authorities need a reasonable
period to consider their actions. It is therefore important, for the public, that the ability to
properly carry out recovery proceedings following an OLAF investigation, aimed at ensuring
that EU funds unduly spent are recovered to the EU budget, is not undermined. The
completion of such proceedings is essential in terms of protecting EU public funds.
This appears to be the situation in this case. As you know, OLAF’s investigation was concluded
at the end of 2019 with a recommendation to recover nearly €1.5 million. Therefore, while there
might be a public interest in citizens being informed about NGOs that receive public funds,
such as the NGO in question in this case, this interest needs to be balanced with the risk of
undermining OLAF's investigative function or the proper conduct of the recovery
proceedings.
Based on the above-mentioned arguments, while OLAF understands the importance of
transparency of the functioning of the EU institutions, it considers that, given the nature of
its anti-fraud investigations, and the confidential nature of information collected, that
existence of an overriding public interest in disclosing the requested document has not been
demonstrated to the required legal standard. The arguments that you raise cannot provide
an appropriate basis for establishing that, in the present case, the principle of transparency
is of especially pressing concern and could thus prevail over the reasons justifying that the
confidentiality of the documents be maintained. Nor have I, based on the information at my
disposal, been able to identify any element capable of demonstrating the existence of an
overriding public interest.
I therefore conclude that, in the present circumstances, although there might be an interest
for the public to be informed about NGOs funded by donations from the public, there is no
overriding public interest, which justifies disclosure.
15 See orders of 13 July 2004,
Comunidad Autónoma de Andalucía v
Commission, T-29/03, EU:T:2004:235,
paragraph 33, and of 21 June 2017,
Inox Mare v
Commission, T-289/16, EU:T:2017:414, paragraph 14.
16 See orders of 13 July 2004,
Comunidad Autónoma de Andalucía v
Commission, cited above, paragraph 37; of
21 June 2017,
Inox Mare v
Commission, cited above, paragraph 22; and of 22 January 2018,
Ostvesta v
Commission, T-175/17, EU:T:2018:49, paragraph 29 and the case-law cited.
7
Finally, insofar as the requested documents involve the protection of privacy and integrity
of individuals (Article 4(1)(b) of Regulation (EC) No 1049/2001), overriding public interest
in disclosure is not applicable.
6. Means of redress
I draw your attention to the possible means of redress available against this decision. You
may either bring proceedings before the Court of Justice of the European Union or file a
complaint with the European Ombudsman under the conditions specified respectively in
Articles 263 and 228 of the Treaty on the Functioning of the European Union.
Your attention is drawn to the privacy statement below.
Yours sincerely,
Signed Electronically
on 18/12/2020 at 18:19 by
Ville ITÄLÄ [DIRECTOR GENERAL]
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.
8
