Discrepancies in Annual Report 2012 of Court of Justice of the European Union. Apparent misleading presentation of information presented to court by EU Agency for Fundamental Rights

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Dear Justice (JUST),

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information related to activity of EU Agency for Fundamental Rights.

This request is addressed to the three representatives of European Commission, responsible for EU Agency for Fundamental Rights as they are nominated here http://www.asktheeu.org/en/request/olaf_... by Mr Michael Theurer, President of CONT Committee of European Parliament.

Preamble:

Paragraph 3 in Annual Report 2012 of Court of Justice, related to cases on “Impartiality” reads:

“3. Impartiality
The Tribunal annulled a decision rejecting a request for assistance in a case of psychological harassment on the ground of the lack of objective impartiality of the person who had conducted the inquiry underlying that decision. In its judgment of 18 September 2012 in Case F-58/10 Allgeier v FRA the Tribunal observed that the investigator was chairman of the board of an institute which had concluded an important contract with the defendant, a contract capable of being renewed repeatedly, and concluded that the
importance of that business relationship was such as to give rise to justified concern on the part of the applicant that the investigator, because he wanted to maintain that business relationship, would be guided by the aim of protecting the reputation of the Agency”.

Apparently, the information inserted in the REPORT of CJEU is not accurate.

FRA Contracts Department replied through a public channel “ASKTHEEU” http://www.asktheeu.org/en/request/eu_fu... that the respective contract was in fact not renewable.

Quote form FRA reply:

“The contract was signed on the 4.11.2007 with the Danish Institute for Human Rights for an amount of 499,586 Euros”. “The validity of the contract was of one year with no possibility of renewal”

This information was released by FRA under a specific exercise to access documents and information and is opposite to the information provided to Court.

I request access to the following documents:

- Request for Corrigendum sent to Court by FRA
(request to be remitted to the members of FRA Management board).

- Court Rules or Norms in respect of situations revealing substantive inaccurate information after delivery of Court Decision (if the contract was not renewable, the impartiality of the Investigator stay at the same level?)
Request for the Legal Team of European Commission and request for an opinion from the Commissioner for Justice

I request access to the following information:

- interpretation by relevant services of EC (in charge with analyzing such facts of presenting alleged misleading information to the Court)

- interpretation by the same EC services of an apparent conflict of interest of the Investigator (Chairperson of Management Board of Danish Institute of Human Rights, former Superior of the Agent representing the FRA before the Court - Mr Morten KJÆRUM - see case Alggeier v FRA, beneficiary on behalf of DIHR of a contract of 499,586 Euros concluded with Fundamental Rights Agency). Its about a mixture which should raise legit questions. Conflict of interest is sanctioned in the EU. Conflict of interest is listed here http://ec.europa.eu/anti_fraud/investiga...

- validity of judgment, cited in Annual Report 2012 - Allgeier v FRA, (being based on an untrue fact, it gives rise for sanctioning of misleading information presented by FRA to the Court via revision, corrigendum, etc. Are there any similar precedents? ) I would highly appreciate such interpretation from the side of Commissioner for Justice.

Thank you in advance for not rejecting my request to information.

Yours faithfully,

Mike Stabenow

Justiz und Verbraucher

Dear Mr Stabenow,

Thank you for your email sent on 9 August, in which you request documents related to the Case F-58/10 Allgeier v. FRA of the European Union Civil Service Tribunal.

I would like to inform you that the Commission was not a party to these proceedings. We therefore do not hold the documents you refer to and we are unable to handle your application in this respect.

As for your request to have copy of Court Rules or Norms in respect of situations revealing substantive inaccurate information after delivery of Court Decision, I would refer you to the rules of procedure of the EU Court of Justice and namely to article 159, concerning revision of a Court ruling (http://eur-lex.europa.eu/LexUriServ/LexU...). If you wish to have more information on how this is applied and whether there are cases, please address your question to the Court, which only can give an authentic interpretation of its rules of procedure and relevant case law.

In your email you have also made several requests for information. In this respect, please note that FRA is a body which is independent from the Commission, based on Council Regulation (EC) n° 168/2007. The Commission is therefore not in a position to comment on daily management issues in relation to FRA.

You also seek for the opinion of the Commission on the validity of the ruling in case F-58/10. I regret to inform you that because the Commission was not party to the procedure, there is not a service in charge of analysing such facts for a possible follow-up and therefore the Commission is not in the position to provide a legal assessment on such ruling.

As regards the issue of conflict of interest in general, please be informed that in line with the "The Common Approach on EU Decentralised Agencies"- agreed by the European Parliament, the Council and the Commission on 19 July 2012 - and as announced in the Commission implementation Roadmap, adopted in December 2012, the Commission is currently developing guidelines on the prevention and management of conflicts of interest for management board members and directors, as well as experts in scientific committees and members of boards of appeal in agencies. This document is due to be adopted by the Commission by the end of 2013 and should then serve as a reference for agencies. Concerning FRA specifically, the Management Board adopted new Rules governing conflict of interests in the Management Board and Scientific Committee during its meeting on 22-24 May 2013.

Yours faithfully,

The Secretariat

European Commission
Directorate General Justice
Unit C1 - Fundamental Rights and Rights of the Child

Office: Rue Montoyer, 59  5/075, 1000 Brussels, Belgium
Mail address: European Commission – DG JUST/C1 - MO59 05/075
B-1000 Brussels – Belgium
E-mails: [email address]

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Justiz und Verbraucher

Dear Mr Stabenow,

Thank you for your email sent on 9 August, in which you request documents related to the Case F-58/10 Allgeier v. FRA of the European Union Civil Service Tribunal.

I would like to inform you that the Commission was not a party to these proceedings. We therefore do not hold the documents you refer to and we are unable to handle your application in this respect.

As for your request to have copy of Court Rules or Norms in respect of situations revealing substantive inaccurate information after delivery of Court Decision, I would refer you to the rules of procedure of the EU Court of Justice and namely to article 159, concerning revision of a Court ruling (http://eur-lex.europa.eu/LexUriServ/LexU...). If you wish to have more information on how this is applied and whether there are cases, please address your question to the Court, which only can give an authentic interpretation of its rules of procedure and relevant case law.

In your email you have also made several requests for information. In this respect, please note that FRA is a body which is independent from the Commission, based on Council Regulation (EC) n° 168/2007. The Commission is therefore not in a position to comment on daily management issues in relation to FRA.

You also seek for the opinion of the Commission on the validity of the ruling in case F-58/10. I regret to inform you that because the Commission was not party to the procedure, there is not a service in charge of analysing such facts for a possible follow-up and therefore the Commission is not in the position to provide a legal assessment on such ruling.

As regards the issue of conflict of interest in general, please be informed that in line with the "The Common Approach on EU Decentralised Agencies"- agreed by the European Parliament, the Council and the Commission on 19 July 2012 - and as announced in the Commission implementation Roadmap, adopted in December 2012, the Commission is currently developing guidelines on the prevention and management of conflicts of interest for management board members and directors, as well as experts in scientific committees and members of boards of appeal in agencies. This document is due to be adopted by the Commission by the end of 2013 and should then serve as a reference for agencies. Concerning FRA specifically, the Management Board adopted new Rules governing conflict of interests in the Management Board and Scientific Committee during its meeting on 22-24 May 2013.

Yours sincerely,
Salla Saastamoinen

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Dear Justice (JUST),

Dear Ms Salla Saastamoinen, you state that:

"...please note that FRA is a body which is independent from the Commission, based on Council Regulation (EC) n° 168/2007. The Commission is therefore not in a position to comment on daily management issues in relation to FRA".

Ms Saastamoinen, but I see here in FRA website taht you and Mr Nemitz are part of the Management Board of FRA.
http://fra.europa.eu/en/about-fra/struct...

Which is the law that precludes you, as representative of EC in FRA MB to get involve in FRA major subjects of activity and to contribute to their clarification? I do believe that this is your (MB members) mandatory duty. Please accept apologies if I am wrong.

If possible I would like to ask one question, whose response is clearly under your mandate and role as representative of EC in FRA MB.

Could you grant me access to the Decision or Endorsement of FRA MB & EC representatives related to this call of 20.000.000 Euro? It seems that is a duplication because I see that FRA launched this new call for tender of 20 millions euro http://fra.europa.eu/sites/default/files...
for the same subject as here
http://fra.europa.eu/sites/default/files...,
which is a contract of 12 millions euro awarded in 20.5.2011. Do you have any legal means to see why this new award procedure is launched after only 2 years out of 4. I see in OJEU that the total duration of that contract of 12 millions euro was 4 years. What happened with the money?

Which is the final outcome for these FRA contracts of 12 + 20 millions euro ? Would be possible to provide me access to the documents containing the deliverables? (including internet links if available).

I launch this request to you, based in your role of member in FRA MB, representing the European Commission, as provided here http://fra.europa.eu/en/about-fra/struct.... If this request do not fall under your duties, please forward it to the President of FRA MB. Thank you very much.

Yours faithfully,

Mike Stabenow

Dear Justice (JUST),

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Justice (JUST)'s handling of my FOI request 'Discrepancies in Annual Report 2012 of Court of Justice of the European Union. Apparent misleading presentation of information presented to court by EU Agency for Fundamental Rights'.

I herby submit an internal review against the tacit rejection of my request of 10 September 2013.

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

Yours faithfully,

Mike Stabenow

Justiz und Verbraucher

1 Attachment

Dear Mr Stabenow,

Thank you for your e-mail of 10 September 2013. I apologise for delay in replying. The European Union Fundamental Rights Agency (FRA) is a Union body with legal personality which is independent from the Commission. The tasks of the Management Board are specified in Council Regulation N° 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights (copy attached), in particular in Article 12 of the Regulation. The tasks are defined in Article 12 (6) as follows:

"6. The Management Board shall ensure that the Agency performs the tasks entrusted to it. It shall be the Agency's planning and monitoring body. In particular, it shall:

(a) adopt the Agency's Annual Work Programme in accordance with the Multiannual Framework, on the basis of the draft submitted by the Agency's Director after the Commission and the Scientific Committee have delivered an opinion. The Annual Work Programme shall be in accordance with the available financial and human resources and shall take into account the research and statistical work of the Community. The Annual Work Programme shall be transmitted to the European Parliament, the Council and the Commission;

(b) adopt the annual reports referred to in Article 4(1)(e) and (g), comparing in the latter one, in particular, the results achieved with the objectives of the annual work programme; without prejudice to Article 14(5), the Scientific Committee shall be consulted before adoption of the report referred to in Article 4(1)(e); the reports shall be transmitted not later than 15 June to the European Parliament, the Council, the Commission, the Court of Auditors, the European Economic and Social Committee and the Committee of the Regions;

(c) appoint and, if necessary, dismiss the Agency's Director;

(d) adopt the Agency's annual draft and final budgets;

(e) exercise the powers laid down in Article 24(2) in respect of the Director and disciplinary authority over the Director;

(f) draw up an annual estimate of expenditure and revenue for the Agency and send it to the Commission, in accordance with Article 20(5);

(g) adopt the Agency's rules of procedure on the basis of the draft submitted by the Director after the Commission, the Scientific Committee and the person mentioned in paragraph 1(b) have delivered an opinion;

(h) adopt the financial rules applicable to the Agency on the basis of the draft submitted by the Director after the Commission has delivered an opinion, in accordance with Article 21(11);

(i) adopt the necessary measures to implement the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, in accordance with Article 24(3);

(j) adopt the arrangements on transparency and access to documents in accordance with Article 17(2);

(k) appoint and revoke the members of the Scientific Committee in accordance with Article 14(1) and (3); and

(l) establish that a member or an alternate member of the Management Board no longer meets the criteria of independence, in accordance with paragraph 4."

Please find a copy of Regulation N° 168/2007 enclosed.

You are asking for a "document on the Decision or Endorsement of FRA MB & EC representatives related to a call of 20.000.000 Euro". The Commission does not have such document and cannot thus grant access under Regulation (EC) No 1049/2001.

You are also asking for "documents containing the deliverables of FRA contracts of 12 + 20 millions euro". The Commission does not have such documents and cannot thus grant access under Regulation (EC) No 1049/2001.

As regards FRA procurement and tender procedures or other daily management of the Agency, please note that the Management Board of the FRA is not competent to intervene in the decision making process. We advise you to turn to FRA with questions on information relating to procurement or tender procedures of the Agency.

European Union Agency for Fundamental Rights
Document Access Coordinator
Schwarzenbergplatz 11
AT-1040 Vienna
Austria

E-mail: [email address]

Yours sincerely,

Salla Saastamoinen
Head of Unit JUST.C.1 Fundamental rights and rights of the child
DG Justice
European Commission

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Dear Justice (JUST),

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Justice (JUST)'s handling of my FOI request 'Discrepancies in Annual Report 2012 of Court of Justice of the European Union. Apparent misleading presentation of information presented to court by EU Agency for Fundamental Rights'.

The Reply is not in line with the provisions of Regulation annexed by Mrs Salla Saastamoinen. Article 20(10)reads:

"10. The Management Board shall, as soon as possible, notify the budgetary authority of its intention to implement any project which may have significant financial implications for the funding of the Agency's budget, in particular any projects relating to property such as the rental or purchase of buildings. It shall inform the Commission thereof."
Article 12(6)
“"6. The Management Board shall ensure that the Agency performs the tasks entrusted to it. It shall be the Agency's planning and monitoring body. In particular, it shall:
(d) adopt the Agency's annual draft and final budgets;”

The project I referred is some of that type - significant, of high value - 20 million euros. It shall be included in the Budget of agency and adopted by Management Board. MB has full competence to that. See also the rest of provisions in the Regulation annexed.
Therefore I request an internal review in respect of your reply and access to documents and information mentioned in my initial application.
Thank you.

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

Yours faithfully,

Mike Stabenow

Mike Stabenow hat eine Nachricht hinterlassen ()

time limit - 27/10/2013

Justiz und Verbraucher

13 Attachments

Dear Mr Stabenow,

You have asked for an internal review of the handling of your request for access to documents on 10 October 2013. This email further specified the documents you requested from DG Justice. In particular, you asked access to the draft budgets submitted by the Agency to the FRA Management Board, as well as, a copy of the final budget adopted by FRA.

Please find enclosed the draft budgets on the basis of which the MB took its decision for the budgets of the Agency for the years 2010-2014.

As regards the final budget of the Agency, information is available on the website of the Agency at the following address: http://fra.europa.eu/en/about-fra/financ...

Yours faithfully,

Salla Saastamoinen
--------------------------------
Head of Unit

JUST.C.1 Fundamental rights and rights of the child
Directorate General Justice
European Commission
Tel. +32-2-29 69463
Gsm. +32-498-9 69463
E-mail: [email address]
Join the debate on the future of Justice in the European Union.
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Dear Justice (JUST),

Thank you for response.

The project I referred has a significant value - 20 mio euros. Please refer to FRA website http://fra.europa.eu/sites/default/files...
I wrote in my application that such a project has to be included in the Budget of agency and adopted by Management Board.

I cannot see anywhere that amount and the budgetary documents disclosed are from 2012 for the budget of 2013. I requested draft budget and all related budgetary documents drafted in 2013 for 2014. May I kindly ask you to grant me access to these documents? Those documents necessarily have to be endorsed by the current MB and its Chair. All disclosed docs bears signature of Madame Ilze Brands Kehris, who ceased her work at FRA. Thanks.

Yours faithfully,

Mike Stabenow

Mail Delivery System,

This message was created automatically by mail delivery software.

A message that you sent could not be delivered to one or more of its
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host s-dc-edg006-q.mail.ec.europa.eu [147.67.249.2]:
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Dear Justice (JUST),

Could you please mention if my application was treated as a confirmatory application and if there are some means of redress. If yes, please specify those means of redress, and name the institutions, persons and / or competent authority, as requested by Regulation 1049/2001. Thanks.

Yours faithfully,

Mike Stabenow

Mail Delivery System,

This message was created automatically by mail delivery software.

A message that you sent could not be delivered to one or more of its
recipients. This is a permanent error. The following address(es) failed:

[email address]
SMTP error from remote mail server after RCPT TO:<[email address]>:
host s-dc-edg002-z.mail.ec.europa.eu [147.67.11.3]:
550 5.7.1 Email rejected. Your IP address 46.182.104.58 is blacklisted using SPAMCOP. Details:
Blocked - see http://www.spamcop.net/bl.shtml?46.182.1....

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Dear Justice (JUST),

Thank you for response.

The project I referred has a significant value - 20 mio euros.
Please refer to FRA website
http://fra.europa.eu/sites/default/files...
I wrote in my application that such a project has to be included in
the Budget of agency and adopted by Management Board.

I cannot see anywhere that amount and the budgetary documents
disclosed are from 2012 for the budget of 2013. I requested draft
budget and all related budgetary documents drafted in 2013 for
2014. May I kindly ask you to grant me access to these documents?
Those documents necessarily have to be endorsed by the current MB
and its Chair. All disclosed docs bears signature of Madame Ilze
Brands Kehris, who ceased her work at FRA. Thanks.

Yours faithfully,

Mike Stabenow

Justiz und Verbraucher

Dear Mr Stabenow,

Thank you for your message. I would like to ask for further clarification on the document that you are requesting: We were not able find a document on "project ... a significant value - 20 mio euros" in the FRA website. The link in your message goes to a webpage with message "requested page not found".

We already take note that you are requesting to have "draft budget and all related budgetary documents drafted in 2013 for 2014" for the FRA.

Yours faithfully,

Salla Saastamoinen
--------------------------------
Head of Unit
JUST.C.1 Fundamental rights and rights of the child
Directorate General Justice
European Commission
E-mail: [email address]

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Dear Justice (JUST), Dear Mme Salla Saastamoinen,

The call has been moved to closed calls and this is why the link became not functional (in the meantime).

Now the call is here:

http://fra.europa.eu/sites/default/files...
http://fra.europa.eu/en/call-for-tender/...

Yours faithfully,

Mike Stabenow

Justiz und Verbraucher

I am on mission on 11-13 November 2013 and will not read the e-mails
regularly.

 

In urgent matters, please contact the Unit secretariat, 32(2)29.55683 or
+32(2)29.69463, e-mail: [email address].

 

Kind regards,

 

Salla Saastamoinen

--------------------------

Head of Unit JUSTICE.C.1 Fundamental rights and rigths of the child

Directorate General Justice

European Commission

Tel. +32-2-296.94.63

Gsm. +32-498-96.94.63

E-mail: [email address]

Justiz und Verbraucher

1 Attachment

Dear Mr Stabenow,

In your emails of 5 and 12 November 2013 you have requested access to documents
1) relating to a call for tender on data collection and research services on fundamental rights issues, launched by FRA in 2013 and
2) the draft budget and all related budgetary documents drafted in 2013 for the year 2014.

As for the first point, we have not been able to find any documents at the Commission. Thus, we cannot send any documents related to the FRANET service contract.

For the second point, I'm afraid that the Commission does not yet dispose of specific budgetary documents related to the FRA budget of 2014. We can, however, provide you with the draft Annual Work Programme for 2014 which also contains budgetary provisions for that year. You will find it in attachment.

Yours faithfully,

Salla Saastamoinen
--------------------------------
Head of Unit
JUST.C.1 Fundamental rights and rights of the child
Directorate General Justice
European Commission
E-mail: [email address]

----------------------------------
From: Mike Stabenow <[FOI #730 email]>
Date: 12 Nov 2013 21:13:59 GMT+02:00
To: <[email address]>
Subject: RE: access to information request - Discrepancies in Annual Report 2012 of Court of Justice of the European Union. Apparent misleading presentation of information presented to court by EU Agency for Fundamental Rights
Dear Justice (JUST), Dear Mme Salla Saastamoinen,

The call has been moved to closed calls and this is why the link became not functional (in the meantime).

Now the call is here:

http://fra.europa.eu/sites/default/files...
http://fra.europa.eu/en/call-for-tender/...

Yours faithfully,

Mike Stabenow

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