FP6 & FP7 legal basis of certain contractual provisions, protection of personal data

Ihre Anfrage war teilweise erfolgreich.

Mr. Aris KOLIMATSIS

Dear Research and Innovation (RTD),

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. The notes/requests of DG RTD to the Legal Services, which were drafted from 1/7/2000 to 31/12/2004, seeking the advice and opinion of the Legal Services about the effects of entry into force of Regulation No 45/2001 to the FP5 and FP6 programmes, including, among others, proposals for legislative acts, Commission Decisions, and the necessary for the FP6 model contract removal of all incompatible provisions of the FP5 model contract with the Regulation (e.g contractual requirement for keeping certified time-sheets, e.g. article 23(1)of Annex II FP5 model contract). Annexes and appendices to the notes/requests are included in the scope of the request.

2. The notes/opinions of the Legal Services in response to the DG RTD notes/request under (1) above.

3. The notes/requests of DG RTD to the Legal Services, which were drafted from 1/1/2005 to 31/12/2008, seeking the advice and opinion of the Legal Services about every different draft version of the FP7 model grant agreement, as well as those notes/requests regarding the final version of that agreement which lead to the Commission Decision C(2007) 1509/1.

4. The notes/opinions of the Legal Services in response to the DG RTD notes/request under (3) above.

5. The documents of DG RTD with an analysis and reasoning about article 13 of Annex II of the FP7 model grant agreement ‘Processing of personal data’ (version published in Cordis in 2007).

6. The documents of the Legal Services with an analysis and reasoning about article 13 of Annex II of the FP7 model grant agreement ‘Processing of personal data’ (version published in Cordis in 2007).

7. The documents of DG RTD with an analysis and reasoning about article 30 ‘Liquidated Damages’ of Annex II of the FP6 model contract. The request concerns especially the formula of the first subparagraph of the article and the absence of an upper ceiling in that formula, for instance an upper ceiling of 20% of the unduly paid amount, but instead allowing the penalty to reach a possible 100% of the unduly paid amount.

8. The documents of the Legal Services with an analysis and reasoning about article 30 ‘Liquidated Damages’ of Annex II of the FP6 model contract. The request concerns especially the formula of the first subparagraph and the absence of an upper ceiling in that formula.

9. The duly signed day note concerning the Decision C(2003) 799/2, as stipulated by the Commission’s rules of procedure and the rules giving effect to the former rules.

10. The duly signed day note concerning the Decision C(2007) 1509/1, as stipulated by the Commission’s rules of procedure and the rules giving effect to the former rules.

11. The notes/requests of DG RTD to the Legal Services requesting their advice and legal opinion for (a) ‘ Guide to Financial Issues relating to Indirect Actions of the Sixth Framework Programmes’, and (b) ‘Guide to Financial Issues relating to FP7 Indirect Actions’, all versions since 2007.

12. The notes/opinions of the Legal Services in response to the DG RTD notes/request under (11) above.

13. Referring to the second sub-paragraph of article 12(1) of Regulation No 2321/2002 ‘The Commission, after conferring with interested parties from the Member States and the associated States, will prepare a model contract to facilitate the drawing up of contracts’ :
a. The document(s) setting out the ‘identification’ of the ‘interested parties’.

b. The initial invitations to the ‘interested parties’ inviting them to participate in the ‘consultations.’

c. The invitations to meetings, agendas and meeting minutes for every single meeting organised for consultation purposes with the ‘interested parties’.

d. Every single document the Commission services made available, including those dispatched via email, to the ‘interested parties’. This particular request specifically includes the successive draft versions of the FP6 model contract.

14. Referring to article 19(8) of Regulation No 1906/2006 ‘The Commission shall, in close cooperation with Member States, establish a model grant agreement in accordance with this Regulation. If a significant modification of the model grant agreement proves necessary, the Commission shall, in close cooperation with Member States, revise it as appropriate’:

a. The initial invitations to the Member States inviting them to participate in the ‘consultations.’
b. The invitations to meetings, agendas and meeting minutes for every single meeting organised for consultation purposes with the Member States.

c. Every single document the Commission services made available, including those dispatched via email, to the Member States. This particular request specifically includes the successive draft versions of the FP7 model grant agreement.

15. Referring to the provision of article 16(3) of Regulation No 1906/2006 ‘The Commission shall adopt and publish rules governing the procedure for the submission of proposals, as well as the related evaluation, selection and award procedures ….’, the notes/requests of DG RTD to the Legal Services seeking the advice and opinion of the Legal Services about the stipulations of FP7 Guides to Applicants requiring applicants to include in their proposals short CVs (referred to as ‘profiles’) of the key researchers (henceforth ‘CV stipulation’).

16. The notes/opinions of the Legal Services in response to the DG RTD notes/request under (15) above.

17. Referring to the ‘CV stipulation’, every single document drawn up by the DG RTD Data Protection Coordinator about that stipulation.

18. Referring to the ‘CV stipulation’, every single document drawn up by the data controller of the prior notification DPO-978 about that stipulation.

19. The internal notes of the DG RTD Unit(s) dealing with the ‘legal matters’ of FP5, FP6 and FP7 programmes, as the case may be regarding such Unit(s), setting out some kind of a ‘legal analysis’ of the subject-matter of requests under (1), (3), (5), (7), (9), (11), (13) - (15), and (17) - (19).

Regarding requests no (1), (3), (5), (7), (9), (10), (11), (13) - (15), and (17) - (19) it is submitted that none of the exceptions of Regulation No 1049/2001 is applicable. The Commission has adopted a respective final position, and thus article 4(3) is not applicable. New and truly groundbreaking argumentation will be necessary for the Commission services to properly rely on article 4(1)(a) fourth indent to refuse access.

Regarding requests under (2), (6), and (16), it is possible that the Commission services will deny access on the grounds of the ‘protection of legal advice’. However, the subject matter is compliance with the fundamental right of personal data protection. Therefore, there is an overriding public interest for a full release.

Turning to request under (4), the following three observations are submitted. Firstly, the provision of article 22(4) of Annex II of the FP7 model grants agreement ‘….. including information on individual salaries of persons involved in the project…..’ concerns personal data of third parties to the agreement (salaries of persons charged to the project); it is NOT obvious that such a provision meets any of the conditions of article 5 of Regulation No 45/2001. Secondly, that provision falls, most likely, under the ambit of article 28(1) of Regulation No 45/200l; the EDPS web site does not contain any reference to an article 28(1) notification about that particular provision of article 22(4). Thirdly, it appears from the wording of article 13 that FP7 beneficiaries are ‘granted’ rights for their ‘personal data’, which flies in the face of common sense and the EU Courts case law (e.g. paragraphs 95-96 of the Judgment of the Court of First Instance, T-198/03, Bank Austria Creditanstalt v Commission of the European Communities). In the light of such doubts about the very lawfulness of that contractual provision, there is an overriding public interest for their full release.

Regarding the request under (8), the absence of an upper ceiling in the amount of the liquidated damages, immediately calls into question the proportionality of the exact formula. Conceivably, if in a financial audit the Commission services find that ‘time recording is unreliable’ they can reject all personnel costs. This is not science fiction; it is indeed the case in several tens of external financial audits. In such a particular situation, the Commission services are contractually entitled to demand the full re-imbursement of the unduly paid amounts and additional liquidated damages. In some cases, the aggregated sum of the unduly paid amount to be reimbursed and the liquidated damages can be 150% or even 200% of the contractual subsidy. In other words, the FP6 contractor will suffer a significant loss, with the loss reaching in exceptional cases 100% of the unduly paid subsidy. Such a case is in sharp contrast with the financial penalties regimes of Regulation No 2188/95 and Regulation No 1605/2002 (e.g. article 96), not only because those penalties are smaller (up to 10%- 20% of the total amount) but also that those penalties concern infringements of Union law and not mere contractual provisions. It is impossible to accept that Legal Services did not foresee the aforementioned extreme and disproportionate imposition of financial penalties in FP6 contracts. If in an a few lines of a request pursuant to Regulation No 1049/2001 an applicant can advance such arguments, it means that doubts are engendered in the minds of citizens about the proportionality of the liquidated damages provision in question. Therefore, the overriding public interest is manifest for request no (8).

Finally, regarding the request under (12) there is an overriding public interest for their full release. The reason is succinctly set out in the next few lines. Both the FP6 and FP7 Guides in question devote particular attention to the exact form and data of time-sheets, which entails personal data processing by the contractor/beneficiary. Even ‘recommendations’ in the Guidelines for a FP6 contract or a FP7 grant agreement about time-recording are beyond the ambit of Union law. They are, however, in the ambit of the national laws of personal data protection. A series of questions therefore arises as to whether the mere ‘recommendations’ in the Guidelines about time-sheets are beyond the legal mandate of the Research family DGs. The matter is much worse if one considers the following three points. Firstly, the Guidelines have ‘encouraged’ FP6 contractors and FP7 beneficiaries to adopt practices that are not necessarily compliant with the national personal data protection laws. Secondly, according to the Opinion of the Court of Justice in the Schecke ruling, Union law cannot impose personal data processing when it is possible for the EU legislature to enact different provisions avoiding personal data processing; this is obviously the case for all FP7 grant agreements, since contractual terms lay down the mutual agreement of the parties. Thirdly, the Guidelines were issued by the very Guardian of the Treaties. In view of those considerations, the following further remarks are made: On the one hand, failure of the Commission services to fully release the documents under request (12), if they were drafted in the first place, will be tantamount to an admission of attempting to avoid scrutiny on a fundamental personal right (privacy). On the other, should it emerge that the Commission services had never drawn up any document falling under the scope of requests (11) and (12), then one would be wondering how all this has been possible in the first place.

With respect to the day notes of requests under (9) and (10), it is obvious that the Commission services are obliged to release them, as no exception may be relied on.

For signed paper documents, it is kindly requested that the Commission services release scanned versions thereof, which is certain they hold as prescribed by the Commission’s rules on electronic document management.

Should the Commission services require further clarifications, I would be glad to provide them.

Yours faithfully,

Mr. Aris KOLIMATSIS

Generaldirektion Forschung und Innovation

1 Attachment

Dear Mr. Kolimatsis,

 

Thank you for your e-mail dated 25/06/2013 registered on 03/07/2013. I
hereby acknowledge receipt of your requests for access to documents:

1.      ref.: gestdem 2013-3370 for the points n° 1 + 3 + 5 + 7 + 9 + 10 +
11 + 13 + 14 + 15 + 17 + 18 + 19 in green below (request dealt by DG RTD);

2.      ref.: gestdem 2013-3524 for the points n° 2 + 4 + 6 + 8 + 12 + 16
in orange below (request dealt by the Legal Service of the European
Commission).

 

In accordance with Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents, you will receive a
response to your request within 15 working days (24/07/2013).

 

Yours sincerely,

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

 

 

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Generaldirektion Forschung und Innovation

1 Attachment

Dear Mr Kolimatsis,

We refer to your email dated 25 June 2013 in which you make a request for
access to documents, registered on  the same day under the above mentioned
reference number.

Your application is currently being handled. However, we will not be in a
position to complete the handling of your application within the time
limit of 15 working days, which expires on 16 July 2013.

An extended time limit is needed as your application concerns a very large
number of documents, which in order to be retrieved require large files to
be examined by different Services.

Therefore, we have to extend the time limit with 15 working days in
accordance with Article 7(3) of Regulation (EC) No 1049/2001 regarding
public access to documents. The new time limit expires on 6 August 2013.

We apologise for this delay and for any inconvenience this may cause.

Yours faithfully,

 

Silvia BOJINOVA

Head of Unit

 

[1]Description: cid:image001.png@01CDDFB2.68871B70

European Commission

DG Research & Innovation

R5

 

ORBN 09/151

B-1049 Brussels/Belgium

+32 229-85891

[2][email address]

 

[3]http://ec.europa.eu/research

 

 

 

References

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Generaldirektion Forschung und Innovation

1 Attachment

Dear Mr. Kolimatsis,
 
I refer to your e-mail of 25 June 2013 requesting access to documents
under Regulation 1049/2001. The points 2, 4, 6, 8, 12 and 16 of your
request refer to documents under the responsibility of the Legal Service.
Therefore, as you were informed, this part of your request has been
transferred to the Legal on 3 July 2013.
 
The deadline to reply to this part your request expires today. In this
respect, I would like to inform you that your application is currently
being handled by the Legal Service. However, in view of the large number
of other requests attributed lately to our service and the researches we
have to perform in order to retrieve the requested documents, we have not
been in a position to complete the handling of your request. Therefore, we
have to extend the prescribed period by another 15 working days (the new
dead-line expires on 14 August 2013). In any case, I can assure that we
will do our utmost to send you the reply in the shortest time possible. We
apologise for this delay and for any inconvenience this may cause.
 
Yours sincerely,
 
___________________________
Isabel ITURRITZA
Legal Officer
 
European Commission
Legal Service

BERL 1/107
B-1049 Brussels/Belgium
+32 2-295 36 58
[1][email address]
 
 
 

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Generaldirektion Forschung und Innovation

4 Attachments

Dear Mr. Kolimatsis,
 
Please find attached the reply to your request for access to documents
together with the enclosures.
 
Yours sincerely,
 
    
 
___________________________
Isabel ITURRITZA
Legal Officer
 
European Commission
Legal Service

BERL 1/107
B-1049 Brussels/Belgium
+32 2-295 36 58
[1][email address]
 
 
 

References

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Generaldirektion Forschung und Innovation

8 Attachments

Dear Mr Kolimatsis,

 

We refer to your e-mail dated 25/06/2013 and registered on the same day
under the above mentioned reference number.

As this has already been communicated to you, DG Research & Innovation
undertook to reply points 1, 3, 5, 7, 9, 10, 11, 13, 14, 15, 17, and 19 of
your email sent on 25/06/2013. For the rest of the points you have already
received the answer of the Legal Service.

Please find below herewith the answer of DG RTD to the relevant points of
your request mentioned above:

·         We regret to inform you that no documents were found that would
correspond the description given in points 1, 3, 5, 7, 11, 13, 15, 17 and
19 of your application. We are, therefore, unable to handle your
application.

·         In respect of points 9 and 10 of your application, please note
that the day note concerning the Decision C(2003)799/1 and the day note
concerning the Decision C(2007)1509/1 were both drafted by the Secretariat
General, and, as a consequence, we would invite you to let us know if you
wish to address these two points directly to the Secretariat General under
Regulation 1049/2001.

·         Further to the point 14 of your application, please be informed
that DG RTD has identified six meeting agendas, as well as documents
relating to the model grant agreement in the context of the implementation
of the Seventh Framework Programmes of the European Community (2007-2013)
and the European Atomic Energy Community (2007-2011). DG RTD provides you
full access to these documents. The documents relating the model grant
agreement will be sent to you in a second e-mail, due to largeness of the
attachments.

·         Concerning point 15 of your application, we would like to
clarify that as mentioned in the Guide for Applicants, which is attached
herewith for your convenience, individual participants are requested to
provide a short profile of the staff members who will be undertaking the
work, however, no CVs are asked for. Therefore, we regret to inform you
that we are unable to handle points 15 and 17 of your application.

Yours faithfully,

Silvia BOJINOVA

Head of Unit

 

[1]Description: cid:image001.png@01CDF26F.EF7D9990

European Commission

DG Research & Innovation

R5

 

ORBN 09/151

B-1049 Brussels/Belgium

+32 229-85891

[2][email address]

 

[3]http://ec.europa.eu/research

References

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3. http://ec.europa.eu/research

Generaldirektion Forschung und Innovation

14 Attachments

Dear Mr Kolimatsis,

 

We refer to your e-mail dated 25/06/2013 and registered on the same day.

Please find attached the documents provided to you by DG RTD in respect of
the point 14 of your application under the above mentioned reference
number.

Yours faithfully,

Silvia BOJINOVA

Head of Unit

 

[1]Description: cid:image001.png@01CDF26F.EF7D9990

European Commission

DG Research & Innovation

R5

 

ORBN 09/151

B-1049 Brussels/Belgium

+32 229-85891

[2][email address]

 

[3]http://ec.europa.eu/research

 

References

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2. mailto:[email address]
3. http://ec.europa.eu/research

Mr. Aris KOLIMATSIS

Dear Research and Innovation (RTD),

Referring to the initial reply drawn up by the Legal Services, Ares(2013) 2788595 - 30/07/2013, this is confirmatory application for requests #2, #4, #6, and #8 of the initial application. This confirmatory application is to be forwarded the Secretariat-General that is responsible to handle it.

I. REQUEST #2

To set the confirmatory application in a proper context, it is worth recalling that this request concerns:

“The notes/opinions of the Legal Services in response to the DG RTD notes/request” about “The notes/requests of DG RTD to the Legal Services, which were drafted from 1/7/2000 to 31/12/2004, seeking the advice and opinion of the Legal Services about the effects of entry into force of Regulation No 45/2001 to the FP5 and FP6 programmes, including, among others, proposals for legislative acts, Commission Decisions, and the necessary for the FP6 model contract removal of all incompatible provisions of the FP5 model contract with the Regulation (e.g contractual requirement for keeping certified time-sheets, e.g. article 23(1)of Annex II FP5 model contract). Annexes and appendices to the notes/requests are included in the scope of the request”

According to the initial reply of the Legal Services, “The Legal Service has not identified any document which corresponds to the terms of these points of your request”. Moreover, in its initial reply over email of 8/8/2013 DG RTD has informed me that “We regret to inform you that no documents were found that would correspond the description given in points 1, 3, 5, 7, 11, 13, 15, 17 and 19 of your application”.

Both DG RTD and the Legal Services did not find the initial application as lacking sufficient precision, from which it must inferred that the requested documents were precisely identified.

Taking the DG RTD initial reply for request #1 under its full face value, DG RTD did not request the advice/opinion of the Legal Services, and therefore it is expected that the Legal Services did not draw up any document at issue. Under normal circumstances the non-request of DG RTD would be in itself a sufficient reason to conclude with certainty that no documents were drawn up by the Legal Services. This is discussed in the next paragraphs.

The underlying subject matter is nothing but an “ordinary” one, since the Research family DGs have adopted a policy of massively infringing Regulation No 45/2001. The article 25 of Regulation No 45/2001 prior notifications DPO-3334, DPO-3338, DPO-3398, DPO-3420 and DPO-3455 about the external financial audits of the FP6 & FP7 programems were filed four years after the launch of the extensive audit campaigns aiming to audit 50% of all expenditure. These prior notifications not only completely lack a legal basis to process personal data, but as part of the deceitful conduct of the Research family DGs they included the filing of false declarations such as the statements in the prior notifications DG RTD DPO-3398 that no subcontractors were engaged (as of August 2012) and that DPO-3398 was submitted with consultations with the EDPS. Regarding FP6 & FP7 proposals, there is no prior notification about the “short profiles”, that is to say short CVs.

Since DG RTD has “lied” in a statutory instrument (i.e. the prior notification DPO-3398), has infringed the personal data protection rights of hundreds of thousands of European researchers, and has “compelled” FP6 & FP7 participants to infringe the national personal data protection legislation, there can be no confidence that DG RTD has provided a truthful answer regarding request #1.

Reading together the initial replies to requests #1 and #2, the “disappearance” from the FP6 model contract of the FP5 model contact provisions about the requirement for keeping certified time-sheets (i.e. article 23(1)of Annex II FP5 model contract) took place without the drawing up of a single line, not even a mere passage of an email. Supposedly, the overlooking to draft a paragraph took place in a framework programme worth about 15 billion Euro.

Even if DG RTD had not requested the opinion/advice of the Legal Service about the repercussions of Regulation No 45/2001 to the FP6, the Legal Services ought to have advised the Research family DGs on their own motion. In so much the Union Courts consider on their own motion matters of public policy (e.g. compliance with the deadlines to bring an action for annulment), the Legal Services had an obligation to duly advise the Commission itself and the administrative departments about the impact of Regulation No 45/2001 to the FP6. In my view, any failure of the Legal Services to offer on their own motion such advice will amount to a reckless disregard of duty.

In view of all the foregoing, the applicant maintains that the Legal Services did not carry out a diligent search for documents falling under request #2.

II. REQUEST #4

The request concerns the documents drawn up by the Legal Services concerning:

“The notes/requests of DG RTD to the Legal Services, which were drafted from 1/1/2005 to 31/12/2008, seeking the advice and opinion of the Legal Services about every different draft version of the FP7 model grant agreement, as well as those notes/requests regarding the final version of that agreement which lead to the Commission Decision C(2007) 1509/1”

As a preliminary remark, the applicant has appreciated that the Legal Services released a document addressed to DG BUDGET about the FP7 model grant agreement, legal opinion JUR(2007) 15145. However, this opinion:
- Was not requested by DG RTD, i.e. the lead service, even though the request expressly refers to the DG RTD requests
- Was not, seemingly, communicated to DG RTD
- Is beyond the scope of requests #3 and #4

Taking at their face value the initial replies to requests #3 and #4, this means that DG RTD, as the lead service, never bothered to request the opinion of the Legal Services about the FP7 model grant agreement. This begs the question how on earth the borderline absurd provision of article FP7.II.13 about personal data processing were inserted in an agreement governing the disbursement of nearly 50 billion Euro of research subsidies. Seen it in conjunction with the other massive infringements of Regulation No 45/2001, one wonders how all this has been possible.

In view of all the foregoing, the applicant maintains that the Legal Services did not carry out a diligent search for documents falling under request #4.

III. REQUEST #6

The request concerns the documents drawn up by the Legal Services concerning:

“The documents of the Legal Services with an analysis and reasoning about article 13 of Annex II of the FP7 model grant agreement ‘Processing of personal data’ (version published in Cordis in 2007)”

The initial application touched upon the borderline absurd nature of the provisions of this article. It is plainly obvious that the Legal Services ought to have spotted these huge issues and had alerted the Member of the Commission overseeing DG RTD.

The applicant maintains that the Legal Services did not carry out a diligent search for documents falling under request #6.

IV. REQUEST #8

The request concerns:

“The documents of the Legal Services with an analysis and reasoning about article 30 ‘Liquidated Damages’ of Annex II of the FP6 model contract. The request concerns especially the formula of the first subparagraph and the absence of an upper ceiling in that formula”.

The following sections analyse the initial reply.

IV.1. Identification of a single document

According to the initial reply, the sole identified document is the legal opinion JUR(2008) 15423 of 10/7/2008, of which only point 3 concerns the FP6 model contract. The Legal Services did not even partially release the point (3) of the document. The following observations are made about the fact that only a single document was identified:

- The initial application argued about the extreme consequences of the provisions of article FP6.II.30 under some circumstances. This is in itself a reason to draw up documents by both DG RTD and the Legal Services. In case no document(s) are identified, there is a strictly binary interpretation of it: either the Commission services recklessly disregarded their duties or they wish to conceal the document(s) from the public.
- Consequently, the Legal Services ought to have drawn up such documents prior to the adoption of the FP6 model contract by the Commission, that it to say by mid-2003.
- That the Legal Services identified a single document drawn up five years later is a sign of a less than a diligent search for documents.

The applicant maintains that the Legal Services did not carry out a diligent search for documents falling under request #8.

IV.2. Total refusal to release point 3 of JUR(2008) 15423, article 4(2) second indent

According to the initial reply, the disclosure of part (3) “would undermine the protection of legal advice”. In essence, the Legal Services have stated that the release would:

(i) Disclose to the public legal opinions which may not necessarily be fully in line with other legal opinions on the same matters (“disclosure of the withheld part of the legal opinion would have adverse consequences both for the Legal Service's capacity to assist the Commission and its services in the matter concerned without being confronted with its previous positions on the same matter”)

(ii) Hinder the application in a fair and objective fashion of liquidated damages to FP6 contractors and FP7 beneficiaries

(iii) Impact the Commission’s position in contractual disputes before the Courts of the Union

The following observations are made:

- The refused part of the legal opinion concerns the “Guidelines”, which were fully released. In as much the legal opinion is not divergent from the “Guidelines”, it is not “sensible” to fully release a DG RTD internal document (i.e. the “Guidelines”) and totally refuse the legal opinion about it. Apparently, such an attitude makes sense only if the legal opinion exposes “weaknesses” of the “Guidelines” and the whole matter of the liquidated damages. Unless the confirmatory reply fully explains this matter, the public will rightly have serious doubts about both the very legality of the liquidated damages (e.g. violation of principle of proportionality, reliance on inadmissible evidence before the Union Courts to claim unduly paid research subsidies) and the due regard of duty by the Legal Services. Put differently, short of full release of part (3), the public will justifiably suspect the complicity of the Legal Services to the unlawful contractual claims of the Research family DGs in FP6 contracts (e.g. massive violation of Regulation No 45/2001).

- Contrary to what the Legal Services have stated about the fair and objective application of liquidated damages, it is the very withholding from the full public view of the legal opinion that has “given” the Research family DGs another “tool in their toolbox” to apply liquidated damages in an arbitrary and non-uniform fashion. Administrative departments filing false declarations cannot be entrusted with applying in a secretive manner liquidated damages.

- The future impact to the Commission’s position(s) in contractual disputes applies probably to every single legal opinion about the FP6 and FP7 programmes, or more generally to any legal opinion that is relevant to actions before the Courts of the Union. The wholesale adoption of such logic automatically makes whole swaths of legal opinions subject to a total refusal for access. As the guardian of the Treaties, the Commission does not “enjoy” the luxury of withholding from the full public view general-purpose legal opinions about the “extraordinary” nature of article FP6.II.30. Therefore, the position “... impact the Commission's position in disputes before the Court of Justice relating to the liquidated damages, including its rights of defence. This risk is not hypothetical, but a real and concrete one” cannot be accepted.

- In my view, the “right of defence” has nothing to do with a disclosure of part (3). The Legal Services will be perfectly able make pleas in law and facts regardless of the disclosure at issue. Perhaps the Legal Services ought to consider the case law of the Courts of the Union about the “rights of defence” in an administrative procedure (i.e. anti-trust investigations and impositions of fines) about what the “rights of defence” is about.

- The “Guidelines” were apparently released on account of having been previously released pursuant to another application under Regulation No 1049/2001 (footnote 5). In the total absence of information about that application (e.g. whether an overriding public interest case was advanced), its relevance to the present application is not clear.

IV.3. Total refusal to release point 3 of JUR(2008) 15423, article 4(3)

The initial reply does clarify whether it relied on the first or the second sub-paragraph or both. It is clear that the Commission had dully adopted the FP6 model contract in 2003, that is to say 10 years from now. The legal opinion itself is five years old. It is abundantly clear that the Commission has taken a decision.

It seems that the Legal Services have impliedly relied on the second sub-paragraph “Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process”.

Since the initial reply did not state that disclosure will undermine the adoption of general-purpose decisions about liquidated damages (a concrete dispute before the Courts of the Union about the amount of liquidated damages is another matter), it cannot be credibly maintained that the full release of part (3) will “seriously undermine the institution's decision-making process”.

IV.4. Examination of the overriding public interest advanced in the initial application

The initial application expressly made the case of an overriding public interest. The initial reply is totally silent in specifically addressing the advanced arguments. Instead, the reply has cited a general-purpose argument “I understand the interest of transparency (.....) I consider that the interest in transparency does not outweigh the public interest of the Commission (.....) as well as its rights of defence”.

In my view, the initial reply has not properly assessed the overriding public interest argument.

IV.5. Partial release

The Legal Services have not considered partial release of part (3) of the legal opinion.

IV.6. Conclusions

It is reiterated that in my view the Legal Services did not carry out a diligent search for documents falling under request #8. Furthermore, the total refusal to release part (3) of the legal opinion has been incorrectly based on articles 4(2) second indent and 4(3) of Regulation No 1049/2001.

V. CONFIRMATORY APPLICATION

A confirmatory application is hereby submitted. I am confident that the Secretariat-General will take into consideration the above arguments.

Yours faithfully,

Mr. Aris KOLIMATSIS

Generaldirektion Forschung und Innovation

L'activité des services de la Commission européenne étant réduite durant
le mois d'août, vos demandes d'accès aux documents seront traitées dans
les meilleurs délais. Toutefois, certains retards peuvent se produire, en
particulier lorsque le traitement des données exige la consultation des
administrations nationales, d’organisations extérieures ou d’autres
services.

*  *  *

Die Tätigkeiten der Dienststellen der Europäischen Kommission sind im
August reduziert; Ihre Anträge auf Zugang zu Dokumenten werden dennoch so
schnell wie möglich bearbeitet. Allerdings können Verzögerungen auftreten,
insbesondere wenn die Berarbeitung der Anträge die Konsultierung der
nationalen Verwaltungen, externer Organisationen oder anderer
Dienststellen erforderlich macht.

* *  *

The activity of European Commission departments is likely to be reduced
during August.  We will handle  your requests for access to documents as
soon as possible.  However, some delays may occur, especially where the
processing of data requires the consultation of national administrations,
external organisations or other services.

 

Generaldirektion Forschung und Innovation

1 Attachment

  • Attachment

    Re SECOND E MAIL Request for access to documents KOLIMATSIS Gestdem ref no 2013 3370 Ares 2013 2855302.txt

    16K Download View as HTML

Dear Mr Kolimatsis,

 

DG RTD transmitted to the Secretary-General your e-mail dated 20/08/2013
in which you introduced a confirmatory application (herewith).

We don't understand this e-mail, because after analysis, we notice that DG
RTD answered positively to your application ref. GestDem 2013-3370.

If you are referring to another request for access to documents, may I
kindly ask you to mention the reference number of the European Commission
corresponding to your confirmatory application and to send your
confirmatory application as previewed by Regulation (CE) Nr 1049/2001 to
the Secretary-General at: [1][email address]?

Thank you very much for your kind cooperation.

Yours sincerely,

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

References

Visible links
1. mailto:[email address]

Mr. Aris KOLIMATSIS

Dear Research and Innovation (RTD),

Please forward this message to the Transparency Unit.

The confirmatory application dispatched over email on 20/8/2013 concerns GestDem 2013/3534, i.e. corresponding to the initial reply of the Legal Services document Ares(2013)2788595 - 30/07/2013.

With hindsight, I ought to have quoted the GestDem reference number and not just the Ares document reference of the Legal Services initial reply.

I apologize for the inconvenience that I have caused with not quoting the GestDem reference number I trust the the Secretariat-General will be able to further process the confirmatory application.

Yours faithfully,

Mr. Aris KOLIMATSIS

Generaldirektion Forschung und Innovation

L'activité des services de la Commission européenne étant réduite durant
le mois d'août, vos demandes d'accès aux documents seront traitées dans
les meilleurs délais. Toutefois, certains retards peuvent se produire, en
particulier lorsque le traitement des données exige la consultation des
administrations nationales, d’organisations extérieures ou d’autres
services.

*  *  *

Die Tätigkeiten der Dienststellen der Europäischen Kommission sind im
August reduziert; Ihre Anträge auf Zugang zu Dokumenten werden dennoch so
schnell wie möglich bearbeitet. Allerdings können Verzögerungen auftreten,
insbesondere wenn die Berarbeitung der Anträge die Konsultierung der
nationalen Verwaltungen, externer Organisationen oder anderer
Dienststellen erforderlich macht.

* *  *

The activity of European Commission departments is likely to be reduced
during August.  We will handle  your requests for access to documents as
soon as possible.  However, some delays may occur, especially where the
processing of data requires the consultation of national administrations,
external organisations or other services.

Mr. Aris KOLIMATSIS

Dear Research and Innovation (RTD),

Referring to GestDem 2013/3370 for which DG RTD provided the initial reply, this is a confirmatory application concerning the DG RTD initial reply. It is to be forwarded the Secretariat-General that is responsible to handle it.

The confirmatory application concerns requests #1, #3, #5, #7, #9, #13, #14, #15, #17, #18 and #19. An analysis of the DG RTD initial reply is set out below. In sum, it is argued that DG RTD did not carry out a diligent search for documents.

I. OVERALL CONTEXT OF THE DG RTD INIITAL REPLY

The underlying subject matter of GestDem 2013/3370 is nothing but an “ordinary” one, since the Research family DGs have adopted a policy of massively infringing Regulation No 45/2001. The article 25 of Regulation No 45/2001 prior notifications DPO-3334, DPO-3338, DPO-3398, DPO-3420 and DPO-3455 about the external financial audits of the FP6 & FP7 were filed four years after the launch of the extensive audit campaigns aiming to audit 50% of all expenditure. These prior notifications not only completely lack a legal basis to process personal data, but as part of the deceitful conduct of the Research family DGs they included the filing of false declarations such as the statements in the prior notifications DG RTD DPO-3398 that no subcontractors were engaged (as of August 2012) and that DPO-3398 was submitted with consultations with the EDPS. Regarding FP6 & FP7 proposals, there is no prior notification about the “short profiles”, that is to say short CVs.

Since DG RTD has “lied” in a statutory instrument (i.e. the prior notification DPO-3398), has infringed the personal data protection rights of hundreds of thousands of European researchers, and has “compelled” FP6 & FP7 participants to infringe the national personal data protection legislation, there can be no confidence that DG RTD will provide a truthful answer regarding any application pursuant to Regulation No 1049/2001 requesting the release of internal documents directly linked with compliance with Regulation No 45/2001. Apparently, DG RTD prefers to infringe Regulation No 1049/2001 and in full public view by concealing the existence of documents, rather than release them and thereby show its concealed policy of gravely disregarding Regulation No 45/2011 and the fundamental right of personal data protection.

The applicant respectfully submits that DG RTD failed to carry out a diligent search for documents regarding the requests that are the subject of this confirmatory application, thereby effectively refusing the release of several existing documents not protected by any of the exceptions of article 4 of Regulation No 1049/2001, and without a statement of reasons.

The next paragraphs discuss the DG RTD initial replies.

II. REQUEST #1

Reading together the initial replies to requests #1 (by DG RTD – GestDem 2013/3370) and #2 (by the Legal Services GestDem 2013/3524), the “disappearance” from the FP6 model contract of the FP5 model contact provisions about the requirement for keeping certified time-sheets (i.e. article 23(1) of Annex II FP5 model contract) took place without the drawing up of a single line, not even a mere passage of an email. Supposedly, the overlooking to draft a paragraph took place in a framework programme worth about 15 billion Euro.

In view of all the foregoing, the applicant maintains that DG RTD did not carry out a diligent search for documents falling under request #1.

III. REQUEST #3

Article 12(1) of the Commission Decision of 15/11/2005 2005/960(EC, Euratom), OJ L 347/83 of 30/12/2005, amending its rules of procedure reads:

“The agreement of the Members of the Commission to a draft text from one or more of its Members, may be obtained by written procedure, provided the prior approval of the Legal Service and the agreement of the departments consulted in accordance with Article 23 has been obtained. Such approval and/or agreement may be replaced by an agreement between the Heads of Cabinet under the finalisation written procedure as provided for in the implementing rules.”

Commission Decision C(2007) 1509/1 adopting the first version of the FP7 model grant agreement was duly adopted by the written procedure. Therefore, unless and until DG RTD expressly states that aforesaid article 12(1) was infringed, there is at lease one document falling under request #3 that DG RTD failed to identify and release.

In view of all the foregoing, the applicant maintains that DG RTD did not carry out a diligent search for documents falling under request #3.

IV. REQUEST #5

That the provisions of article 13 of Annex II of the FP7 model grant agreement border the absurd is absolutely certain, as they ‘grant’ personal data to legal persons and ‘confer’ the right of recourse to the EDPS, which legal persons do not enjoy in the first place, whereas natural persons (i.e. data subjects) enjoy by virtue of article 46 of Regulation No 45/2001.

According to the DG RTD initial answer, article 13 came out of nowhere. This cannot be accepted, as the principle of sound administration dictates that there is a full traceability by way of documents of how this provision was conceived and ultimately found its way in Annex II of the FP7 model grant agreement. This argument applies a fortiori to the contractual instrument governing the disbursement of the FP7 subsidies to the tune of 50 billion Euro. It there are no documents analysing why article 13 has been drafted in that particular manner, then a similar question can be asked for every single article of Annex II of the FP7 model grant agreement. If no such internal documents for the other articles exist, then the ultimate logical conclusion is that Annex II is an “accident”, which, of course, is not the case.

The applicant maintains that DG RTD did not carry out a diligent search for documents falling under request #5.

V. REQUEST #7

The initial application has argued that article FP6.II.30 can in extraordinary circumstances result in extremely heavy-handed financial penalties to a FP7 beneficiary, for which no similar provision is found in any other Union action granting financial subsidies. In other words, article FP6.II.30 is an antithesis to the general and cardinal legal principle of ‘proportionality’.

The reasoning set out in the second paragraph under section IV above applies mutatis mutandis to the article FP6.II.30. The applicant maintains that DG RTD did not carry out a diligent search for documents falling under request #7.

VI. REQUEST #9

The DG RTD initial reply seems to suggest that DG RTD did not release the requested day note since DG RTD itself has not drafted the day note concerning the Commission Decision C(2003) 799/2. However, this Decision concerns the FP6 model contract, and in my view DG RTD ought to be in a possession of a ‘proper’ copy of the day note at issue, at the very least in order satisfy itself (as the lead service) that the Decision was dully adopted.

Although not strictly a confirmatory application, the applicant would be obliged if the Commission services release a ‘proper’ copy of the day note concerning Commission Decision C(2003) 799/2.

VII. REQUEST #10

The arguments set out in the first paragraph of section VI above apply mutatis mutandis to the present request. In addition, article 16(1) of Annex II of the Commission Decision of 15/11/2005 2005/960(EC, Euratom), OJ L 347/83 of 30/12/2005, amending its rules of procedure reads: “Day notes relating to decisions adopted by written procedure and by empowerment procedure shall be produced and circulated by the Secretary-General within 24 hours of their approval.” Therefore, unless and until the Commission services expressly state that aforesaid article 16(1) was not followed regarding the day not at issue, DG RTD ought to have been in a possession of a ‘proper’ copy of that day note.

The applicant maintains that DG RTD did not carry out a diligent search for documents falling under request #10.

VIII. REQUEST #13

It is wholly unexpected that DG RTD did not identify a single document falling under request #13. The discharge of the statutory duty stipulated in article 12(1) of Regulation No 2321/2002 required the drawing up of the requested documents. Unless and until the Commission services state that the Commission did not duly satisfy that duty, it must be presumed that the Commission services hold numerous documents falling under request #13.

The applicant maintains that DG RTD did not carry out a diligent search for documents falling under request #13.

IX. REQUEST #14

DG RTD released a few documents with meeting agendas, i.e. documents falling under the request #14(b). However, no documents were released for requests #14(a) and #14(c). It is difficult to see how DG RTD, as the lead service, executed its duties in a diligent fashion without having drafted documents falling under requests #14(a) and #14(c).

The applicant maintains that DG RTD did not carry out a diligent search for documents falling under request #14(a) and #14(c).

X. REQUEST #15

The initial reply of DG RTD seems to suggest that the term ‘CV stipulation’ of the initial application is different from the term ‘short profile’ found in FP7 Guides for Applicants. In my view, DG RTD appears to have adopted an overly formalistic interpretation of the request, and has concluded that “we are unable to handle points 15 and 17 of your application”. Yet, DG RTD neither found request #15 as insufficiently precise, in which case it ought to have invited the applicant to provide further clarifications, nor did it state that the requested documents do not exist.

It is kindly suggested that for reasons of procedural economy the Secretariat-General interpret the “CV stipulation” as the “short profile” of the DG RTD initial reply.

XI. REQUEST #17

Regardless of the wording and interpretation of requests #15 and #17, according to article 14 of the Commission Decision 597/2008 (OJ L 193/7 of 22/7/2008) the DG RTD Data Protection Coordinator has had a statutory duty to duly advise DG RTD about the implications of complying with Regulation No 45/2001. Furthermore, he supposedly entered all versions of DPO-978 and DPO-2382 into the register of article 4(4) of Decision 597/2008, so he is personally responsible for their completeness and accuracy.

It is difficult to see how the DG RTD Data Protection Coordinator was completely unaware of the “short profile” requirement for the entire FP7 call for proposals. This implies that, unless the Data Protection Coordinator was grossly negligent in discharging his statutory duties, he ought to have drafted at a bare minimum a couple of short paragraphs falling under request #17.

It is kindly suggested that for reasons of procedural economy the Secretariat-General interprets the “CV stipulation” as the “short profile” of the DG RTD initial reply and take into consideration the reasoning set out in the preceding paragraph.

XII. REQUEST #18

The DG RTD initial reply is totally silent about request #18. Unless it is a typing mistake, it must be interpreted as an implied total refusal for access to the requested document(s).

Even if DG RTD meant to say that there are no documents falling under request #18 exist, this cannot be accepted. The DG RTD DPO-978 prior notification of article 25 of Regulation No 45/2001 is the ‘main workhorse’ when it comes to the FP7 proposals, that is to say proposals that in aggregate have requested several hundreds of billions of Euro of FP7 subsidies. It is not reasonable to claim that the DPO-978 data controller has not drafted a single line.

The applicant maintains that DG RTD did not carry out a diligent search for documents falling under request #18.

XIII. REQUEST #19

DG RTD has had one or more Units or Sections dealing with the legal aspects of FP6 and FP7. The requests of application GestDem 2013/3370 are not about obscure or esoteric matters of FP6 and FP7. They are about the fundamental right of personal data protection, legality, sound administration and the justification of legal provisions of the FP6 model contract and FP7 grant agreement that are in departure for the mainstream, in particular the liquidated damages and FP7.II.13. If no documents falling under request #19 exist, then this will immediately call into question to what extent those Unit(s) was beyond grossly negligent, but instead was turning a blind eye to flagrant, and sometimes blatant, disregard of legality for almost a decade.

The applicant maintains that DG RTD did not carry out a diligent search for documents falling under request #19.

XIV. CONFIRMATORY APPLICATION

A confirmatory application is hereby submitted for GestDem 2013/3370 (initial reply provided by DG RTD). I am confident that the Secretariat-General will take into consideration the above arguments, as well as those of the initial application.

Yours faithfully,

Mr. Aris KOLIMATSIS

Generaldirektion Forschung und Innovation

1 Attachment

Dear Mr Kolimatsis,   

 

Thank you for your e-mail dated 20/08/2013, registered on 13/09/2013.  I
hereby acknowledge receipt of your confirmatory application for access to
documents (ref.: Ares(2013)3040949 – gestdem 2013-3524). 

 

In accordance with Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents, you will receive a
response to your request within 15 working days (04/10/2013).

 

Yours sincerely,

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

 

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Generaldirektion Forschung und Innovation

1 Attachment

Dear Mr Kolimatsis,   

 

Thank you for your e-mail dated 30/08/2013, registered on 13/09/2013.  I
hereby acknowledge receipt of your confirmatory application for access to
documents (ref.: Ares(2013)3040883 – gestdem 2013-3370). 

 

In accordance with Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents, you will receive a
response to your request within 15 working days (04/10/2013).

 

Yours sincerely,

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

 

Zitate anzeigen

Generaldirektion Forschung und Innovation

2 Attachments

Dear Mr Kolimatsis,
Kindly find herewith a letter concerning your confirmatory application for
access to documents (gestdem 2013-3370).
       
Yours sincerely,
 
Paul SIMON
Unit SG.B.5, Transparency
European Commission
 

Generaldirektion Forschung und Innovation

2 Attachments

Dear Mr Kolimatsis,
Kindly find herewith a letter concerning your confirmatory application for
access to documents (gestdem 2013-3524).
       
Yours sincerely,
 
Paul SIMON
Unit SG.B.5, Transparency
European Commission
 

Generaldirektion Forschung und Innovation

1 Attachment

Dear Mr Kolimatsis,

 

The treatment of your confirmatory request GestDem 2013-3370 shows that
the request #9 of this confirmatory request has to be considered as a new
initial request for access to documents (in green and bold, below).

I hereby acknowledge receipt of this new request for access to documents
(ref.: gestdem 2013-5287).

In accordance with Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents, you will receive a
response to your request within 15 working days (18/11/2013).

 

Yours sincerely,

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

 

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Generaldirektion Forschung und Innovation

2 Attachments

Dear Mr Kolimatsis,

Kindly find herewith a letter concerning your confirmatory application for
access to documents (gestdem 2013/3370).
Yours sincerely,
Carlos Remis
SG.B.5.
Transparence.
Berl. 05/329.
 
 
 
 

 
 
 

Generaldirektion Forschung und Innovation

2 Attachments

 
 
Dear Mr Kolimatsis,

Kindly find herewith a letter concerning your confirmatory application for
access to documents (gestdem 2013/3524).
Yours sincerely,
Carlos Remis
SG.B.5.
Transparence.
Berl. 05/329.
 
 
 
 

 
 
 

Generaldirektion Forschung und Innovation

1 Attachment

            Dear Mr Kolimatsis,

We refer to your e-mail dated 30/08/2013 in which you submit a request for
access to documents, registered on 25/10/2013 under the above mentioned
reference number.

Your application is currently being handled. However, we will not be in a
position to complete the processing of your application within the time
limit of 15 working days, which expires on 18/11/2013.

            An extended time limit is needed as the requested document is
held by a different service which needs to be consulted.

Therefore, we have to extend the time limit with 15 working days in
accordance with Article 7(3) of Regulation (EC) No 1049/2001 regarding
public access to documents. The new time limit expires on 09/12/2013.

            We apologise for this delay and for any inconvenience this may
cause. We also thank you very much in advance for your kind understanding.

            Yours faithfully,

Silvia BOJINOVA

Head of Unit

 

          [1]Description: cid:image001.png@01CDF26F.EF7D9990

European Commission

DG Research & Innovation

R5

 

ORBN 09/151

B-1049 Brussels/Belgium

+32 229-85891

[2][email address]

References

Visible links
2. mailto:[email address]

Generaldirektion Forschung und Innovation

1 Attachment

Dear Sir,
 
Please find attached a letter concerning your confirmatory application for
access to documents (GestDem 2013-3370).
 
 
Kind regards,
 
Priscille Schiltz
European Commission
Secretariat General
Unit B5 "Transparency"
 
 
 

Mr. Aris KOLIMATSIS

Dear Research and Innovation (RTD),

Please forward this email to the Secretariat-General.

**********

Dear Transparency Unit,

Referring to the response to the confirmatory application Ares(2013)3535386 - 21/11/2013 about GestDem 2013/3370, this is to kindly request a clarification about the request #10 'The duly signed day note concerning the Decision C(2007) 1509/1, as stipulated by the Commission’s rules of procedure and the rules giving effect to the former rules.'.

Whereas request #10 was not referred to in the second paragraph of the confirmatory application of 30 August, in section 'VII. REQUEST #10' of the application I stated 'The applicant maintains that DG RTD did not carry out a diligent search for documents falling under request #10.'. Arguably, on balance one would have understood that the confirmatory application concerns request #10 also.

From the wording of the response of 21 November it appears that the Secretariat-General did not consider request #10, at least in so far DG RTD holds a copy of the day note. Because the Secretariat-General is obliged to release a true copy of the day note, the silence of the response reinforces an understanding that the Secretariat-General did not consider request #10 at all.

I would therefore be obliged if the Secretariat-General would clarify the response of 21 November regarding request #10.

Yours faithfully,

Mr. Aris KOLIMATSIS

Generaldirektion Forschung und Innovation

1 Attachment

Dear Mr Kolimatsis ,

 

Thank you for your e-mail dated 22/11/2013. After analysis, it was
considered it has to be registered as a new initial request.

I hereby acknowledge receipt of your request for access to documents
(ref.: gestdem 2013-5939).

In accordance with Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents, you will receive a
response to your request within 15 working days (18/12/2013).

 

Yours sincerely,

 

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

 

 

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1 Attachment

Dear Mr. Kolimatsis,
 
Subject:        Your application for access to documents – Ref GestDem No
5287/2013
 
The document you have requested access to is: SEC(2003)325
 
Thank you for your e-mail, requesting access to documents under Regulation
No 1049/2001 (1) regarding public access to European Parliament, Council
and Commission documents.
I am pleased to enclose a copy of the document SEC(2003)325 (Day note
concerning decisions adopted by Commission by written procedure on 17
March 2003 (decision C(2003)799/2) ) which I hope will meet your needs. I
must however, remind you that it cannot be reproduced or disseminated for
commercial purposes unless the Commission has first been consulted.
Please be informed that this day note is an electronic version of the
original day note, which has been deposited in the archives of the
Commission.
This copy is extracted from the Commission's electronic archive and fully
reflect the content of the original.
 
Yours sincerely,
For the Registry Director
Martine DEPREZ
European Commission
Secretariat General/Head of Unit  SG.A.1 (Registry)
Tel. +32 2 29 62236
_______________________________
(1) OJ L 145, 31.05.2001, page 43
 
Your request: VI. REQUEST #9
 
The DG RTD initial reply seems to suggest that DG RTD did not release the
requested day note since DG RTD itself has not drafted the day note
concerning the Commission Decision C(2003) 799/2. However, this Decision
concerns the FP6 model contract, and in my view DG RTD ought to be in a
possession of a ‘proper’ copy of the day note at issue, at the very least
in order satisfy itself (as the lead service) that the Decision was dully
adopted.
 
Although not strictly a confirmatory application, the applicant would be
obliged if the Commission services release a ‘proper’ copy of the day note
concerning Commission Decision C(2003) 799/2.
 
 
 
 
 
 

Generaldirektion Forschung und Innovation

1 Attachment

Dear Mr. Kolimatsis,
 
Subject:        Your application for access to documents – Ref GestDem No
5939/2013
 
The document you have requested access to is: SEC(2007)456/4
 
Thank you for your e-mail, requesting access to documents under Regulation
No 1049/2001 (1) regarding public access to European Parliament, Council
and Commission documents.
I am pleased to enclose a copy of the document SEC(2007)456/4 (Day note
concerning decisions adopted by the Commission by written procedure on 10
April 2007 (decision C(2007)1509/1) which I hope will meet your needs. I
must however, remind you that it cannot be reproduced or disseminated for
commercial purposes unless the Commission has first been consulted.
Please be informed that this day note is an electronic version of the
original day note, which has been deposited in the archives of the
Commission.
This copy is extracted from the Commission's electronic archive and fully
reflect the content of the original.
 
Yours sincerely,
For the Registry Director
Martine DEPREZ
European Commission
Secretariat General/Head of Unit  SG.A.1 (Registry)
Tel. +32 2 29 62236
_______________________________
(1) OJ L 145, 31.05.2001, page 43
 
Your request:
'The duly signed day note concerning the Decision C(2007) 1509/1, as
stipulated by the Commission’s rules of procedure and the rules giving
effect to the former rules
 
 
 
 
 
 
 
 
 
 
 

Mr. Aris KOLIMATSIS

Dear Research and Innovation (RTD),

Referring to the applications GestDem 5287/2013 & 5939/2013, this message is the confirmatory application pursuant to articles 7 and 8 of Regulation 1049/2001.

It is to be forwarded to the Secretariat-General.

*************

Dear Secretariat-General,

I refer to the applications GestDem 5287/2013 & 5939/2013 which concern the day notes SEC(2003)325 and SEC(2007)456/4 respectively.

Because the Transparency Unit provided me with non-copies of the requested documents, it is necessary to lodge a confirmatory application for the full release of the day notes SEC(2003)325 and SEC(2007)456/4.

The requested copies are either
- scanned copies of the day notes bearing the hand-written signature of the Secretary-General
or
-a scanned copy of a duly certified copy of the day note bearing the signature of the Secretary-General; the released copy is to bear a serial number and the signature or stamp of the custodian of the original of the day note.

***

It seems to me that it is not worth repeating the arguments of other applicants who have also requested day notes via asktheeu.org about the fundamental importance of day notes to legal certainty.

That both day notes concern the first versions of the FP6 model contract and the FP7 model grant agreement makes the whole issue extremely disturbing. The inexplicable insistence of the Secretariat-General of not disclosing proper copies SEC(2003)325 and SEC(2007)456/4 further increases the justified doubts of whether those two models were ever adopted in accordance to the Commission's rules of procedure.

This is explained below by way of elaborating the very special nature of the Commission Decision C(2007) 1509, which is listed in SEC(2007) 456/4.

The responses to the requests #3 - #7 of the confirmatory application GestDem 2013/3370, Ares(2013)3535386 - 21/11/2013, http://www.asktheeu.org/en/request/593/r..., essentially say that neither DG RTD requested the opinion of the Legal Services about the Commission Decision C(2007) 1509 nor did the Legal Services drew up a single line. In other words, the Legal Services participated in inter-services consultations about Decision C(2007) 1509, gave their express approval to article FP7.II.13 and article FP7.II.22.4, yet the Legal Services did not draw one line about those two provisions. Those two articles contravene Regulation 45/2001, and the latter is also essentially a contravention of Directive 95/46/EC (personal data protection).

In GestDem 2013/4933 DG ECFIN released a document, http://www.asktheeu.org/en/request/872/r..., that reveals in page 4 the inter-services consultation 555851 which was about C(2007) 1509, and in which the Legal Services had participated. It is nearly impossible to see how the Legal Services had not written even a single line about articles FP7.II.13 & FP7.II.22.4.

The above considerations show that some Directorates-General want to hide from the public documents about the procedural aspects of how Commission Decision C(2007) 1509 was adopted in compliance with the Commission's rules of procedure.

One of the underlying subject matters is the fundamental right of personal data protection, an area in which the Research DGs have filed entirely bogus prior notifications of article 25 of Regulation 45/2001 with two false statements - specifically DG INFSO DPO-3338.1, DG ENTR DPO-3334.1, DG RTD DPO-3398.1 and DG MOVE DPO-3420.1. As stated above, articles FP7.II.13 & FP7.II.22.4 of the Decision C(2007) 1509 contravene Community law on personal data protection.

Now the Secretariat-General has yet again wholly unlawfully and arbitrarily refused to fully release true copies of the day notes SEC(2003) & SEC(2007)456/4.

***

In view of the above considerations, any failure of the Secretariat-General to fully release true copies of the two day notes will be totally unacceptable. As such a conduct cannot be tolerated, in the event the Secretariat-General would release unsigned and partial copies of the two day notes I will write to the President of the Commission, to a few other Institutions, and to the Ombudsman kindly drawing their attention to the practices of the Secretariat-General and the underlying substance.

I sincerely hope that the Secretariat-General will not compel me to escalate the matter.

Yours faithfully,

Mr. Aris KOLIMATSIS

Generaldirektion Forschung und Innovation

1 Attachment

Dear Mr Kolimatsis,   

 

Thank you for your e-mail dated 08/12/2013, registered on 10/12/2013.  I
hereby acknowledge receipt of your confirmatory application for access to
documents (ref.: Ares(2013)3685391 – gestdem 2013-5287). 

 

In accordance with Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents, you will receive a
response to your request within 15 working days (10/01/2013).

 

Yours sincerely, 

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

 

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Generaldirektion Forschung und Innovation

1 Attachment

Dear Mr Kolimatsis,   

 

Thank you for your e-mail dated 08/12/2013, registered on 10/12/2013.  I
hereby acknowledge receipt of your confirmatory application for access to
documents (ref.: Ares(2013)3685391 – gestdem 2013-5939). 

 

In accordance with Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents, you will receive a
response to your request within 15 working days (10/01/2013).

 

Yours sincerely, 

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

 

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Generaldirektion Forschung und Innovation

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Dear Mr Kolimatsis,

Kindly find the answer to your confirmatory application concerning your
request for access to documents pursuant to Regulation (EC) N° 1049/2001
regarding public access to European Parliament, Council and Commission
documents (Gestdem 2013/5287 & 2013/5939).
Yours sincerely,
Carlos Remis
SG.B.5.
Transparence.
Berl. 05/329.