Follow-up on Special Report 14/2017

Corinne Katz-Duchowski made this Informationsfreiheit request to Der Europäische Rechnungshof

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Ihre Anfrage war teilweise erfolgreich.

Corinne Katz-Duchowski

Dear European Court of Auditors,

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:
any follow-up report or any document (analysis, memorandum, investigation, study, etc. about SR 14/2017) held by ECA after publishing Special Report 14 in 2017, for instance documents used by ECA in later discussions with Curia (or with IAS or EPPO or OLAF) since 2018 and later years until today.

Yours faithfully,
Corinne Katz-Duchowski

ECA-INFO, Der Europäische Rechnungshof

Dear Ms Katz-Duchowski,

 

Thank you for contacting the European Court of Auditors (ECA).

 

We acknowledge receipt of your message of 9 January 2023. Your request is
currently under treatment and we will provide you with a reply in due
course.

 

Kind regards

ECA-INFO team

 

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ECA-INFO, Der Europäische Rechnungshof

Dear Ms Katz-Duchowski,

 

Thank you for contacting the European Court of Auditors (ECA).

 

Your request has been treated according to the rules on public access to
ECA documents, which are set out in [1]Decision No 12/2005 of the Court
of Auditors regarding public access to Court documents (as amended by ECA
Decision No 14/2009, consolidated version published in OJ C 67/1 of
20.03.2009) (altogether, "the Court's Decision"). Please note that
Regulation 1049/2001 regarding public access to European Parliament,
Council and Commission documents is not applicable to our institution.

 

We would like to inform you that in the context of the [2]Report of the
European Court of Auditors on the performance of the EU budget – Status at
the end of 2020 (2020 ECA report on performance), the ECA carried out a
follow-up of the [3]Special report no 14/2017: Performance review of case
management at the Court of Justice of the European Union (SR). However,
taking into account that the ECA only issued ‘considerations for further
improvement’ in the SR, the resulting observations on the follow-up were
not included in the 2020 ECA report on performance (see footnote 2 of
point 7.14).

 

With regard to this follow-up audit and its underlying documents, we would
like to inform you that, under Article 4.2 of the ECA’s Decision on access
to documents, the ECA’s audit observations (other than the final
observations published in its reports) enjoy a general presumption of
confidentiality and cannot be disclosed to third parties. This is
confirmed by Article 259(1) of the [4]EU Financial Regulation (Regulation
2018/1046), according to which the ECA’s “observations shall remain
confidential”.

The ECA’s internal analysis of the documents received from the auditee, or
of the auditee’s replies, is reflected in the different drafts of its
audit observations, which constitute working documents. Being a collegial
body, the ECA is only legally bound by documents that are formally adopted
by its College of Members (e.g. reports and opinions). Please note that,
in this case, the ECA had exchanges on the topic with the Court of Justice
of the European Union (CJEU), which did not end up in any official report
publication.

These exchanges and the documents leading to the formal adoption of a
report or opinion by the ECA, including draft of the report and working
documents, are preparatory in nature and, as such, are comparable to the
deliberative process at the Court of Justice and the General Court, which
is deemed confidential.

According to the same article, as regards documents used in the
preparation of its audit observations, the ECA may refuse access to them.
These underlying documents and the replies of the auditee are documents of
which the ECA is not the author. Pursuant to Article 4.5 of its Decision
no 12-2005, "if the application concerns a document held by the Court but
of which the Court is not the author, the Court shall confirm receipt of
the application and supply the name of the person, institution or body to
whom the application must be addressed". Therefore, you may consider
addressing your request to the CJEU with a view to obtain those documents
([5]https://curia.europa.eu/jcms/jcms/P_1848...).

 

This notwithstanding, in application of Article 4.8 of the ECA’s Decision
on access to documents, the ECA may decide to allow access to a document
where there is an overriding public interest in its disclosure. We note
that, contrary to case-law* (applicable by analogy in this case), you have
not adduced any proof as to how disclosing the requested documents to you
would serve the public interest.

Even in the event that the existence of an overriding public interest had
been demonstrated, we believe that the public interest is better served by
not disclosing preparatory versions of the audit observations and
documents used to prepare the ECA’s audit observations. Releasing to the
public only the final version of its reports as adopted by the
Chamber/Court allows the ECA to respect its auditees’ rights to be heard,
which is a fundamental principle of law. It also allows the ECA to produce
reports which are factually accurate and contain observations and
recommendations supported by all the relevant evidence, and which
ultimately provide added value for the discharge authorities and for the
auditees in the reviewed areas.

Moreover, we would also like to inform you that, to the best of our
knowledge, the ECA did not have exchanges with the IAS and OLAF regarding
this follow-up.

Please be informed that, under Article 7 of Decision 12/2005, you can ask
the ECA to reconsider its position within 15 working days of receiving
this reply. Your request for reconsideration should be submitted to the
President of the ECA.

Kind regards

ECA-INFO team

 

*“in so far as concerns the last clause of Article 4(2) of the regulation
[(EC) No 1049/2001], it is, by contrast, for the party alleging an
overriding public interest, within the meaning of that clause, to prove
that interest.” (Judgment of 25 September 2014, Spirlea/Commission
([6]T-669/11), paragraph 97)

 

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From: ECA-INFO <[ECA request email]>
Sent: Thursday 12 January 2023 09:52
To: Corinne Katz-Duchowski <[FOI #12405 email]>
Cc: ECA-INFO <[ECA request email]>
Subject: RE: access to documents request - Follow-up on Special Report
14/2017

 

Dear Ms Katz-Duchowski,

 

Thank you for contacting the European Court of Auditors (ECA).

 

We acknowledge receipt of your message of 9 January 2023. Your request is
currently under treatment and we will provide you with a reply in due
course.

 

Kind regards

ECA-INFO team

 

[12]https://www.eca.europa.eu/PublishingImag...

[13]https://www.eca.europa.eu/PublishingImag... ECA-INFO

Information Desk
12, rue Alcide De
Gasperi - L-1615
Luxembourg
[14]eca.europa.eu

  [15]https://www.eca.europa.eu/PublishingImag...
Please consider the environment before printing this email
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