Dear Secretariat General (SG),

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:

1. Any documents relating to past and ongoing procedures aimed at the renewal, extension, or replacement for the contract with Commission contract number DI-06270 with Fujitsu Siemens Computers SA/NV (name changed later to “Fujitsu Technology Solutions SA/NV”), for Provision of Large Account Reseller (LAR) services for the acquisition of Microsoft software products and licenses under an Interinstitutional Licensing Agreement (ILA).

This contract will expire during the year 2014. Please provide all documents related to past or ongoing procedues for replacing or extending this contract.

2. Any documents related to past and ongoing procedures aimed at the renewal, extension, or replacement of the the so-called "Interinstitutional Licensing Agreement (ILA)" with Microsoft Ireland Operations Limited, which is made up by agreements with the following Commission contract numbers:

DI-06890 (Business Agreement)

DI-06891 (Enterprise Subscription Agreement)

DI-06892 (Select Agreement)

DI-06893 (Enterprise Subscription Enrollment - Commission)

DI-06894 (Select Enrollment - Commission)

3. Any documents related to past and ongoing procedures aimed at the renewal, replacement, or extension of the contract with Commission contract number DI-06900 with Microsoft SA/NV (Belgium) for the "Provision of high-level services" and a total value of 44 729 341 EUR.

Yours faithfully,

Karsten Gerloff
President, Free Software Foundation Europe e.V.
http://fsfe.org

Your letter dated February 24, 2014

Reference: GestDem N° 2014/276

Dear Mr del Pino,

having received your letter yesterday, I would like to express my gratitude for your team's effort in preparing a response to our request for access to documents. We understand that our request concerns a complex subject matter, and that consequently it is necessary to assemble a relatively large number of documents.

We appreciate the Commission's commitment to approaching our request in the spirit of Regulation (EC) 1049/2001, which has as its purpose „to ensure the widest possible access to documents“ (Art. 1(a)). The categorisation of the documents undertaken in your letter appears quite practical and conducive to a „fair solution“ as described in Art. 6 (3) of the above-mentioned regulation. Please let me comment on your suggestions for each of the proposed categories in turn.

Regarding Category A, we agree that the Orientation Document and its annexes are highly relevant to our request. We would be grateful if the Commission were to provide this document, and trust that based on our shared committment to transparency, any masking of parts of the text will occur only where strictly necessary.

Regarding Category B, we share your view that these documents are likely to be highly repetitive, and would likely do little to advance our understanding. We agree that the proposed overview table appears to be the best way forward.

From your description, the documents in Category C appear central to the purpose of our request, and I would like to politely reiterate our request that the Commission should provide these documents. The number of documents at issue (5) is so small compared with Categories A and B that their release would mean negligible additional effort on the Commission's part, while providing a significant gain for the public interest.

Further, we have some difficulty determining why these documents should be covered by the exceptions foreseen in Article 4 of the above-mentioned Regulation. Any names of persons mentioned in the document would presumably pertain to the officers of the parties involved, rather than to anyone acting in their individual capacity. We also fail to perceive any risk that the release of the documents in this category may pose of undermining the Commission's decision-making process.

In case the Commission decides that the documents in this category should not be released, we would expect a detailed rationale to be provided for this decision, explaining both the specific exceptions to the „widest possible access to documents“ stipulated in Regulation (EC) No 1049/2001 (Art. 1(a)), and the specific risks which the Commission foresees if these documents were to be released.

Regarding the documents described under Category D, I would like to note that (as is clear from our request) we are quite interested in the on-going procurement procedures under discussion, and would be grateful for the opportunity to review these documents along with those of the other categories. Given that this category comprises a mere two documents, the effort required in releasing them would be comparatively trivial. As everyone involved is presumably acting in their capacity as an officer of the Commission, it is difficult to see any problems related to the protection of personal data on this score.

While your letter concerned points 2 and 3 of our request, I would like to take this opportunity to express our anticipation of also receiving the requested documents concerning the renewal, extension, or replacement for the contract with Commission contract number DI-06270 with Fujitsu Siemens Computers SA/NV.

Sincerely,

Karsten Gerloff
President
Free Software Foundation Europe e.V.

Dear Secretariat General (SG),

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

I am writing to request an internal review of
Secretariat General (SG)'s handling of my FOI request
'Extending or replacing EC's contracts with Microsoft &
suppliers of Microsoft licenses'.

In reply to our request, and following an exchange of
letters, the Commission's Directorate General for
Informatics has provided us with several documents, some
of them heavily redacted.

The Directorate General for Informatics decided to
withhold a number of other documents which it deemed
relevant to our request. At our request, DG DIGIT
provided an assessment of its decisions under the
Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents.

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

While we agree that some of the DG DIGIT's decisions are correct in that they concern information which is
covered by the exceptions provided in the Regulation, we respectfully disagree with a number of the decisions
made.

Below, we outline the points on which we would ask the
Secretariat General to engage in an internal review of
the Directorate General's decisions to withhold
information. The numbering refers to the relevant
sections of the document titled "Position of the
Commission's Directorate-General for Informatics", which was included in the set of documents provided to us by that Directorate on March 4, 2014.

3.3 - Exception on the protection of commercial
interests

Regarding this section, we would like to point out that
at least one specific issue is not covered by the
exceptions provided in the Regulation: the product
coverage.

In her recent letter to MEP Andersdotter (dated January
31, 2014, available at
https://ameliaandersdotter.eu/sites/defa...),
the Secretary General highlights the need for business
continuity. If the purpose of the negotiated contract is
to ensure business continuity, the list of products
should be the list of products used by the Institutions
today. This should be no secret. Exceptions may be
acceptable for some products in the area of security.

This list of products also defines the scope of the
market. There is no reason for the Commission to
withhold this information. We would expect that the
Commission has already reached an informed decision
regarding the scope of the market ahead of the decision
to engage in a negotiated procedure with a single
supplier. Releasing the list of products, licenses and
services the Commission wishes to acquire therefore
could not possibly impact its negotiating position, and
thus its commercial interests.

3.4 - Exception on the ongoing decision-making process

We fail to see why the rationale for using a particular
legal basis (Art.134(1)(b) of RAP - "where, for
technical or artistic reasons, or for reasons connected
with the protection of exclusive rights, the contract
can be awarded only to a particular economic operator")
for the negotiated procedure cannot be made public.

Our view is that the rationale for the negotiated
procedure should be public in order to protect the
interest of Microsoft's competitors. We would also hope
and expect that the Commission has developed a full
rationale for the decision to engage in a negotiated
procedure before taking the decision to actually do so.
It would be far too late to release this rationale only
at the time when the results of the negotiated procedure
are published.

If the Commission has correctly followed the applicable
procedures, there should be no way in which the
publication of the rationale to engage in a negotiated
procedure could upset the decision-making process, since
that decision has already been taken. We therefore urge
the Secretariat General to facilitate the release, at
the earliest possible time, of the Commission's
rationale for engaging in a negotiated procedure with
Microsoft.

We would also argue that the "invitation to tender"
(Document C), as the document that describes the scope
of the market, should be made available. There is no
reason why this scope should be secret until the
negotiation ends. Saying that Document C only serves as
preparatory measure in the context of the ongoing
decision-making process does not seem logical.

The decision to start a negotiated procedure with
Microsoft is a decision that has clearly already been
taken. Hence there is no ongoing decision-making process anymore in this regard, and the exception in the Regulation does not apply.

This decision should be based on a sound legal basis,
and there is no reason to withhold information about
that legal basis, or about the rationale to use that
legal basis. This decision should also define the scope
of the negotiated procedure and again there is no reasonto keep this scope secret. This scope can be appreciated by the list of products to be covered by the negotiated procedure and by the invitation to tender. Rational and scope are essential elements for the taken decision to start a negotiated procedure with Microsoft, and none of the exceptions foreseen in the relevant regulations seem to apply to this information. Therefore this information should be made public.

In conclusion, we would like to state our concern
regarding the Commission's practice of keeping secret
the names of Commission staff acting in their official
capacity. Commission officials acting in pursuance of
their official duties in our view do not qualify as
"natural persons" as intended in the Regulation. In the
interest of transparency, and in order to increase the
credibility and trustworthiness of the Commission in the eyes of Europe's citizens, we hope that this practice will soon be changed.

Yours faithfully,

Karsten Gerloff