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Margarida da Silva

Dear Human Resources and Security,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which relate to any article 16, article 12B and article 40 (staff regulations) applications made by Nicholas Banasevic, former Head of Unit at DG Competition.

In particular, I request a note of all Mr. Banasevic's job titles at the Commission including dates held; copies of any application(s) that he has made under article 12b, 16 and 40 to undertake a new professional activity; and all documents (correspondence, emails, meeting notes etc) related to the authorisation of the new role or roles.

When processing this request please take into consideration that there is a public interest in understanding how the EU Commission assessed and handled an employment request for such a high level official. This is especially true in a case that involves such a high level official taking up employment in a private company that is active on matters for which the official had been responsible.

Citizens have a right to know how the Institutions handle such cases, that transparency and accountability are crucial for the proper implementation of these rules.

Yours faithfully,

Margarida da Silva
CEO,
Rue d'edimbourg 26,
Bruxelles

HR ACCESS TO DOCUMENTS, Generaldirektion Humanressourcen und Sicherheit

[1]Acknowledgement of Receipt - GESTDEM 2021/5927 - Ares(2021)6104569 
(Please use this link only if you are an Ares user – Svp, utilisez ce lien
exclusivement si vous êtes un(e) utilisateur d’Ares)

Dear Madam,

Thank you for your e-mail of 6 October 2021. We hereby acknowledge receipt
of your application for access to documents, which was registered today 7
October 2021 under reference number GESTDEM 2021/5927.

In accordance with Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, your application
will be handled within 15 working days. The time-limit will expire on 28
October 2021. In case this time-limit needs to be extended, you will be
informed in due course.

For information on how we process your personal data visit our page
Privacy statement – access to documents.

Yours faithfully,
Riccardo Grisanti
HR ATD Team

References

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1. https://webgate.ec.testa.eu/Ares/documen...

SOLÍS SANTOS Teresa (HR), Generaldirektion Humanressourcen und Sicherheit

1 Attachment

Dear Ms da Silva,

Please find attached document Ares(2021)6615702 from MAKOWSKA Katarzyna (HR.E.3) dated on 26 October 2021.

Sincerely yours,

Teresa Solis Santos
HR ETHICS team
HRE3

SOLÍS SANTOS Teresa (HR), Generaldirektion Humanressourcen und Sicherheit

1 Attachment

Dear Ms da Silva,

Please find attached document Ares(2021)7162744 from INGESTAD Gertrud (DG HR) dated on 21 November 2021.

Sincerely yours,

Teresa Solis Santos
HR ETHICS team
HRE3

Margarida da Silva

Dear SOLÍS SANTOS Teresa (HR),

Please pass this on to the person who reviews confirmatory applications.

I am filing the following confirmatory application with regards to my access to documents request 'Banasevic employment authorisation' registered under the reference number 2021/5927.

When processing this request please take into consideration that, in its response to my request, the Secretariat-General stated that my request could not even be handled and it could not disclose whether such documents existed because:
• Information about the existence of documents falling under the scope of your request, formulated in relation to an identified or identifiable natural person, and their identification, if any, constitutes processing of personal data and reveals information relating to an identified or identifiable natural person (personal data)
• The Secretariat-General further states that as per article 9(1)(b) of the Data Protection Regulation, such personal data should only be transmitted for specific purpose in the public interest and where there is no reason to assume that the legitimate interests of the data subject might be prejudiced.
• The Commission then stated that I had failed to declare “ any particular interest to have access to these personal data” and did not “put forward sufficiently substantiated arguments to establish the necessity to have the data transmitted for a specific purpose in the public interest.”

I would now like to ask for a confirmatory review of this decision as I believe the Secretariat-General has taken a too broad interpretation of personal data and, furthermore, it has failed to consider the public interest necessity of disclosure as I had outlined in my original request.

In concrete, I would like to raise that:
1) In its response, the Secretariat-General argued that the documents, and further even the existence of these documents, would constitute processing of personal data as per article 9(1)(b) of the Data Protection Regulation.

This is a too broad interpretation of personal data, and specifically of special categories of personal data. Article 9(1)(b) of the Data Protection Regulation clearly states that such special categories are “ personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation”.

My request covered a whole host of documents - not all of them can reasonably be construed to be a special category of personal data as defined in Article 9(1).

I would also highlight that, according to Regulation (EC) No 1049/2001 article 4 (6), if “only parts of the requested document are covered by any of the exceptions, the remaining parts of the document
shall be released.”

It should be completely feasible for the European Commission to protect special categories of personal data while also releasing parts of the documents covered within the scope of my request.

2) As per Article 9(2) of the General Data Protection Regulation, personal data can also be disclosed if “processing is necessary for reasons of substantial public interest, on the basis of Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject”.

The Commission’s response stated that I had not expressed “any particular interest to have access to these personal data “ nor had I “put forward sufficiently substantiated arguments to establish the necessity to have the data transmitted for a specific purpose in the public interest.“

This is incorrect. In my application I detailed the specific public interest that would make disclosure of this information necessary.

Namely I wrote that “there is a public interest in understanding how the EU Commission assessed and handled an employment request for such a high level official. This is especially true in a case that involves such a high level official taking up employment in a private company that is active on matters for which the official had been responsible. Citizens have a right to know how the Institutions handle such cases, that transparency and accountability are crucial for the proper implementation of these rules.”

This is a specific and reasoned public interest justification which the European Commission did not take into consideration at all when making its decision. It then failed to fulfill its duty to balance the protection of personal data with the reasoned public interest of disclosure.

3) The public interest justification is especially strong in this case. The employment of former public officials is a matter that attracts public concern across the EU for its potential to create conflicts of interest and threats to the integrity and independence of EU policy-making.

this case has already raised intense public concern with a variety of media reports highlighting the seniority of the former official, his new employer and the overlaps between his responsibilities at the EU Commission and the work undertaken by the his new employer.
You can find examples below:
Politico EU https://www.politico.eu/article/top-anti...
Law.com https://www.law.com/international-editio...
DeStandaard https://www.standaard.be/cnt/dmf20211006...
Le Monde https://www.lemonde.fr/economie/article/...

The case has also attracted criticism from MEP Daniel Freund https://danielfreund.eu/wie-lobby-kontro...

To address such concerns, the EU Institutions have put rules in places such as Article 16 of the EU Staff Regulations. This article states that even after leaving public service, EU Officials continue to be bound by the duty to behave with integrity and discretion as regards the acceptance of certain appointments or benefits.

Senior officials are bound by even stricter rules, which include extra layers of transparency.

In its implementation of article 16 paragraph 3, the EU Commission publishes an annual report with a list of the cases assessed that refer to former senior officials. This list includes personal data such as the name of the former official, previous titles they had held, the new activity for which authorisation was sought and the decision from the services - including limitations placed.

European Commission considers senior officials to include Directors-General or Deputy Directors-General, Hors Classe Advisors, Directors, Principal Advisers and Heads of Cabinet. This includes officials that were “called upon to occupy temporarily such posts in accordance with Article 7(2) of the Staff Regulations and having exercised either of these functions at any time during the last 3 years before leaving the service. “ https://ec.europa.eu/info/sites/default/...

In May 2021 Nicholas Banasevic had reportedly become the acting director of directorate C (Markets and cases II Information, Communication and Media). Mr Banasevic must then be understood to fall in the senior official category and thus any application for post-public office employment made by him must be subject to extra layers of transparency as per article 16 of the EU Staff Regulations.

The EU Ombudsman has stressed the importance to publish information on individual cases of post-public office employment as that information becomes available as such disclosure is fundamental to allow effective public scrutiny of staff revolving doors moves. https://www.ombudsman.europa.eu/en/decis...

Knowing how the EU Commission handled a potential application for outside employment by Banasevic is a matter of public interest in as much as it would allow the public to scrutinise how the EU Institution had implemented its duty to protect the independence and integrity of EU policy-making and implemented the EU Staff Regulations.

Article 9 (2) of the Data Protection Regulation admits that even special categories of personal data may be processed if “necessary for reasons of substantial public interest, on the basis of Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject”.

I have argued that disclosing the documents relating to any potential applications made by Mr. Banasevic is necessary to ensure the substantial public interest at play. This is in line with EU Staff Regulations and the EU Commission’s specific practice of how to balance personal data with the implementation of article 16 of the EU Staff Regulations. Further, as the news of the move of Mr Banasevic from the EU Commission to a private law firm have been widely reported on and questioned (including by members of the European Parliament) , releasing documents which allow the public to determine how the EU Commission handled this process, would actually safeguard the interests of the data subject.

The EU Commission should then revise its decision as:
- the simple disclosure of whether the documents exist cannot be understood to be a violation of personal data protection
- not all documents falling within the scope of my request can reasonably be understood to constitute a special category of personal data
- there is a reasoned and necessary public interest in the disclosure of personal data in this case. This can be done while safeguarding the best interests of the data subject.
- the Secretariat failed to adequately balance the personal data protection with the public interest behind the disclosure of these documents.

A full history of my request and all correspondence is available on the Internet at this address: https://www.asktheeu.org/en/request/bana...

Yours sincerely,

Margarida da Silva

COLUCCI Michele, Generaldirektion Humanressourcen und Sicherheit

2 Attachments

Dear Ms Da Silva,

We acknowledge receipt of your email here below.

We understand that you would like to lodge a confirmatory request  with
the Secretariat General (“SG”) following our reply to your request of
access to document registered under the reference number 2021/5927.

We  respectfully remind you that  there is a specific procedure to follow
in order to lodge a complaint with the SG of the European Commission.

Therefore, in order to ensure that the SG receives your request through
the dedicated official channels and guarantees the proper follow up of the
file,  we kindly ask you to refer to the last part of our reply to the
above mentioned request in which we specified that :

 

“In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are
entitled to make a confirmatory application requesting the Commission to
review this position.

Such a confirmatory application should be addressed within 15 working days
upon receipt of this letter to the Secretary-General of the Commission at
the following address:

European Commission

Secretariat-General

Transparency, Document Management & Access to Documents (SG.C.1)

BERL 7/076

B-1049 Bruxelles

or by email to: [1][email address] “

 

Best regards,

Michele Colucci

 

 

Michele Colucci

 

[2]sig

European Commission

DG Human Resources and Security

Legal Affairs and Partnerships | HR. E3 Ethics & Ombudsman

MO34 04/0040  | Rue Montoyer 34, B-1000 Brussels

+32 2 29 90662 | [3][email address]

[4]cid:image003.png@01D12C56.84C222A0

 

 

 

 

 

 

Zitate anzeigen

SG-GREFFE-CERTIFICATION@ec.europa.eu, Generaldirektion Humanressourcen und Sicherheit

4 Attachments

 

Dear Ms Margarida Da Silva,

 

Please find attached the electronic version of Commission Decision C(2022)
1946 as adopted by the European Commission on 23.3.2022.

 

Given the exceptional circumstances due to the COVID-19 pandemic, the
formal notification of the decision under Article 297 TFEU is being made
only in electronic form.

 

Please confirm receipt of the attached document by return e-mail.

 

Kind regards,

 

 

MARTIN GALAN MARIA SERENA

Secrétariat général de la Commission – Greffe B-2
Procédures écrites, habilitations, délégations et transmissions externes

BERL 5/155
'   +32-2-299.59.48
7    +32-2-296.72.43

[1]cid:image016.jpg@01D041FE.EC4221C0[2]cid:image017.jpg@01D041FE.EC4221C0[3]cid:image018.jpg@01D041FE.EC4221C0

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References

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3. https://urldefense.com/v3/__https:/secur...

SG-GREFFE-CERTIFICATION@ec.europa.eu, Generaldirektion Humanressourcen und Sicherheit

3 Attachments

Dear Ms / Dear Mr,

It is very important for us.

Please, could you please acknowledge the receipt of the document enclosed
in the message addressed to you ?

 

MARTIN GALAN MARIA SERENA

Secrétariat général de la Commission – Greffe B-2
Procédures écrites, habilitations, délégations et transmissions externes

BERL 5/155
'   +32-2-299.59.48
7    +32-2-296.72.43

[1]cid:image016.jpg@01D041FE.EC4221C0[2]cid:image017.jpg@01D041FE.EC4221C0[3]cid:image018.jpg@01D041FE.EC4221C0

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From: SG GREFFE CERTIFICATION
Sent: Friday, March 25, 2022 7:41 AM
To: '[FOI #10008 email]'
<[FOI #10008 email]>
Cc: BEVIERE Chantal (SG) <[email address]>
Subject: C(2022) 1946 final addressed to Margarida Da Silva

 

 

Dear Ms Margarida Da Silva,

 

Please find attached the electronic version of Commission Decision C(2022)
1946 as adopted by the European Commission on 23.3.2022.

 

Given the exceptional circumstances due to the COVID-19 pandemic, the
formal notification of the decision under Article 297 TFEU is being made
only in electronic form.

 

Please confirm receipt of the attached document by return e-mail.

 

Kind regards,

 

 

MARTIN GALAN MARIA SERENA

Secrétariat général de la Commission – Greffe B-2
Procédures écrites, habilitations, délégations et transmissions externes

BERL 5/155
'   +32-2-299.59.48
7    +32-2-296.72.43

[4]cid:image016.jpg@01D041FE.EC4221C0[5]cid:image017.jpg@01D041FE.EC4221C0[6]cid:image018.jpg@01D041FE.EC4221C0

   Your tool  | Our help

 

References

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1. https://intragate.ec.europa.eu/decide/sep
3. https://webgate.ec.europa.eu/fpfis/wikis...
4. https://urldefense.com/v3/__https:/secur...
6. https://urldefense.com/v3/__https:/secur...

Wir sind nicht sicher, ob die letzte Antwort auf diese Anfrage Informationen enthält – »falls Sie Margarida da Silva sind, bitte melden Sich an und lassen es uns wissen.