FP6 & FP7 programmes, external financial audits, Audit Manuals & Guidance Papers, overriding public interest
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:
I. EUROPEAN COUNT OF AUDITORS ANNUAL REPORT ON THE IMPLEMENTATION OF THE 2010 BUDGET (2011/C 326/01)
I.1 Contents of the Annual Report, DG RTD recovery of amounts unduly paid
Page 178, Commission replies:
“As an example of the functioning of this system, DG Research and Innovation recovered 14,51 million euro up to 31 March 2011.”
The documents applied for hereunder concern the three (3) Debit Notes with the highest amounts in the total sum of 14.5 million Euro, which were addressed to three (3) distinct FP6 contractors or FP7 beneficiaries, as the case may be. By definition, the Debit Notes are associated, in an one-to-one basis, with three (3) distinct external financial audits DG RTD conducted.
For the purposes of precisely identifying the requested documents, the logical procedure of identifying those three Debit Notes is outlined, even though it may go over the top to provide details. DG RTD will rank the Debit Notes according to the amount requested from the contractor/beneficiary. From the Debit Notes at the top of the list, DG RTD will select the three ones that were addressed to three different legal persons. There is an underlying external financial audit for each of those three selected Debit Notes.
Copies of the following documents held by the Commission services
are kindly requested for each of the three external financial audits and Debit Notes:
1. The letter notifying the contractor/beneficiary about the conduct of an external financial audit, including all annexes and the Privacy Statement.
2. The article 25 of Regulation No 45/2001 prior notification applicable at the material time regarding the DG RTD external financial audits.
3. The final audit report, including all annexes thereto.
4. Any single one time-sheet (i.e. only one out of many), if any, held by DG RTD and collected from the field audit.
5. The ‘statement of content’ (within the meaning of Case T-437/08, CDC Hydrogene Peroxide v European Commission) of the file regarding the financial audit, that is to say a list of documents held in the audit file.
6. The duly signed Recover Order corresponding to the Debit Note, as provided by articles 70 to 73 of Regulation No 1065/2002 (Financial Regulation).
7. The Debit Note
I.2 Outsourced external financial audits
Page 179, Commission replies:
“6.34. Outsourced audits are planned and controlled entirely by the Commission.
The external auditors are selected after thorough scrutiny that they are using a unique audit approach on a pan-European basis. The Commission provides them with an audit manual and guidance papers to make their audit approach consistent and to avoid quality issues.
Commission audit staff accompany the external audit firms on a number of audit missions. This ensures collaboration in the areas of planning, conduct of audit work and reporting, and thereby permits monitoring working methods and audit procedures of the external audit firms concerned.”
Copies of the following documents held by the Commission services are kindly requested:
8. Every single different version of the ‘audit manual’ handed over to the external audit firms. In case the audit manual comprises several different documents, every single constituent document falls under the scope of this request.
9. Every single ‘guidance paper’ handed over to the external audit firms.
10. The documents setting out the roles and responsibilities of the Commission audit staff accompanying the external auditors.
II. EUROPEAN COUNT OF AUDITORS ANNUAL REPORT ON THE IMPLEMENTATION OF THE 2011 BUDGET (2012/C 344/01)
II.1 Compliance of the external audit firms with the Commission’s requirements
Page C 344/199
Court's Recommendation 3:
“ensure that the external audit firms conducting audits on its behalf align their procedures with the Commission’s guidelines and standard practice and in particular enhance the quality of their audit documentation”
Commission's reply:
“— The Commission will intensify its efforts to ensure that the external audit firms meet all the specific requirements set out in the framework contract for every audit assignment. In this context, reviews of the working papers retained by the external audit firms will be performed to ensure these are in line with requirements of the framework contract. The first such reviews will take place before the end of 2012.
Accordingly, the Commission does not consider that straightforward application of the Auditing Standards on reliance on work of other auditors is appropriate in this case.”
Copies of the following documents held by the Commission services are kindly requested:
11. The parts of the framework contracts that lay down the obligations imposed on the external audit firms with regards to the conduct of the field audit and the drawing up of the audit reports.
12. The documents draw up regarding the intensification of the ‘efforts to ensure that the external audit firms meet all the specific requirements set out in the framework contract for every audit assignment’
13. The documents drawn up regarding how those Research family DGs were to carry out the ‘reviews of the working papers retained by the external audit firms will be performed’.
14. The documents drawn up with some kind of explanation/justification of why exactly ‘the Commission does not consider that straightforward application of the Auditing Standards on reliance on work of other auditors is appropriate in this case’.
II.2 Feedback to certifying auditors
Page C 344/203, Commission reply:
“The Commission services already have in place a process to provide feedback to the certifying auditors where the Commission's ex-post audits identified material differences between the certified cost statements and its own findings. This is achieved either by writing to the beneficiaries inviting them to communicate the feedback to the certifying auditor or by directly addressing the certifying auditors. ”
Copies of the following documents held by the Commission services are kindly requested:
15. The documents drawn up setting out in a generic manner ‘a process to provide feedback to the certifying auditors where the Commission's ex-post audits identified material differences between the certified cost statements and its own findings’.
16. Any there (3) letters (out of many) addressed to beneficiaries providing feedback ‘to the certifying auditors where the Commission's ex-post audits identified material differences between the certified cost statements and its own findings’.
17. Any there (3) letters (out of many) addressed to certifying auditors providing feedback to them ‘where the Commission's ex-post audits identified material differences between the certified cost statements and its own findings’.
III. ARGUMENTS FOR FULL RELEASE OF THE REQUESTED DOCUMENTS
III.1 EXCEPTIONS OF REGULATION NO 1049/2001
Regarding the exceptions of article 4 of Regulation No 1049/2001, it is worth recalling from the outset that:
- Pursuant to article 4(1)(b) the Commission services are legally obliged to withhold the identities of natural persons, other than Commission officials.
- Pursuant to article 4(2) first indent ‘protection of commercial interests’ the Commission services should withhold the identities of the contractors-beneficiaries and the FP6/FP7 projects only.
- The Commission Services may not rely on article 4(2) third indent ‘the purpose of inspections, investigations and audits’ to refuse total access because (i) the external financial audits are pursuant to contractual stipulations only (i.e. FP6.II.29 and FP7.II.22), (ii) the settled case law of the EU Courts – as well the Commission’s pleas in law in FP6 contractual disputes before the General Court - is that in FP6 contracts and FP7 grant agreements the Commission does not rely on its prerogatives as a public authority, (iii) it will defy logic to argue that external audit firms carry out an audit within the meaning of article 4(2) third indent, and (iv) article 57(2) of Regulation No 1605/2002 (Financial Regulation), as amended, expressly prohibits the outsourcing of public authority to private sector entities.
- It will be borderline bizarre to argue that article 4(1) fourth indent ‘the financial, monetary or economic policy of the Community’ applies to contractual measures carried out by private sector entities, and in an area where the Commission does not rely on its prerogatives as a public authority.
- Article 4(3) is not applicable as the Commission has adopted its final position at the time the requested documents were drawn up.
It is thus obvious that the documents are to be fully released, except the relatively few words enabling the identification of legal and natural persons and the audited research projects.
III.3 OVERRIDING PUBLIC INTEREST
The public is entitled to have full access to the requested documents in order to scrutinise to what extend the Research family DGs have designed and implemented lawful external financial audits.
Very recently, a substantial number of applications pursuant to Regulation No 1049/2001 were lodged with the Commission services via the public asktheu.org organisation. From the tone of the applications themselves and also the reply of the Commission Data Protection Officer of 5/7/2013 in GestDem 2013/3421, http://www.asktheeu.org/fr/request/exten..., “Please note that no document have been drawn up by the DPO”, it is self-evident that the prior notifications DG ENTR DPO-3334.1, DG INFSO DPO-3338.1, DG RTD DPO 3308 (mid-2012) and DG MOVE & ENER DPO-3420.1 have the two wilful and intentional false statements, namely that “This processing has been submitted to the EDPS who concluded that Article 27 is not applicable” & “3. Sub-Contractors —”.
In several jurisdictions, the wilful and intentional misrepresentation of facts by public officials in official documents is a criminal offence.
That the Research family DGs were prepared to risk the commitment of wrongful acts and in full public view, which may also be criminal offences, shows that there is something very fishy about the external financial audits.
In the light of the foregoing considerations, the overriding public interest is self-evident.
Yours faithfully,
Mr. Sifis RAPTIS
Dear Mr Raptis,
Thank you for your e-mail dated 12 July 2013. We hereby acknowledge
receipt of your application for access to documents, which was registered
on the same day under reference number GestDem2013/3654.
In accordance with Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, your application
will be handled within 15 working days. The time limit will expire on 2
August 2013. In case this time limit needs to be extended, you will be
informed in due course.
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
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Dear Mr Raptis,
We would like to assure you that your application is currently being
processed. However, we regret to inform you that, as your application
concerns a very large number of documents, their handling cannot be
carried out within the normal time limits set out in Article 7 of
Regulation (EC) N° 1049/2001.
Yet, the Regulation also provides for a possibility to confer with
applicants in order to find a fair solution when an application concerns a
very large number of documents. Article 6(3) provides that "in the event
of an application relating to a very long document or to very large number
of documents, the institution concerned may confer with the applicant
informally, with a view to finding a fair solution".
Based on this provision, we would kindly ask you whether you would agree
that we extend the deadline for handling your above mentioned application
until 30/09/2013. Needless to say, we will try to finalise the handling
of your application for access to documents as fast as possible.
If you have any questions concerning this proposal, you can contact us by
email to: [1][email address]
Yours faithfully,
Silvia BOJINOVA
Head of Unit
[2]Description: Description: Description: Description: Description:
cid:image001.png@01CDF26F.EF7D9990
European Commission
DG Research & Innovation
R5
ORBN 09/151
B-1049 Brussels/Belgium
+32 229-85891
[3][email address]
[4]http://ec.europa.eu/research
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Dear Research and Innovation (RTD),
The DG RTD proposal to extend the date of the initial reply to the 30th of September 2013 is accepted.
I am confident that in accessing the applicability of the article 4 exceptions of Regulation No 1049/2001 DG RTD will take a holistic view of the underlying matters.
Yours faithfully,
Mr. Sifis RAPTIS
Dear Research and Innovation (RTD),
This is to make enquiries about the status of the DG RTD initial reply and provide further arguments in support of the full release of all requested documents.
1. FURTHER ARGUMENTS
It is appropriate to drawn the attention of DG RTD that there is precedence about the full release of some of the requested denouements, except the tiny parts of the documents with personal data that is protected by article 4(1)(b) of Regulation 1049/2001. The release of such document is described below.
1.A. DG RTD LETTERS ANNOUNCING AUDITS
In the context of GestDem 2013/3956 - in full public view at http://www.asktheeu.org/en/request/fp6_f... - DG INFSO released the letters D(2011) 118637of 29/4/2009, and Ares(2011) 258273 - 9/3/2011.
From a careful examination of the GestDem 2013/3956 correspondence between DG CONNECT and the applicant (in full public view) it emerges that those two DG INFSO audit announcement letters were released in another application pursuant to Regulation No 1049/2001 that preceded GestDem 2013/3956.
Consequently, it must be concluded that in another application pursuant to Regulation No 1049/2001 the Commission services fully released audit announcement letters, except the parts of the documents identifying the individuals other than the then DG INFSO S.5 Head of Unit.
Unless DG RTD would discriminate this applicant in relation to the applicant(s) to whom/which the aforesaid two DG INFSO letters were released, it is expected that DG RTD will fully release the requested audit announcement letters, expunging only the parts of the letters disclosing the identity individuals other than the signatory of the letters. All information about the addressee of the letter is to be fully released.
1.B. DEBIT NOTES AND RECOVERY ORDERS
It has recently brought to the applicant's attention that during the last two years the Commission services have fully released several Debit Notes and Recovery Orders pursuant to Regulation No 1049/2001. Some, but not all, of those released documents were expressly cited in Commission Decisions imposing a pecuniary obligation according to article 299 TFEU (ex 256 EC) or waiving debts due to the insolvency of the debtor.
In view of such a precedence, in case DG RTD were to refuse access to Debit Notes and Recovery Orders it will be extremely interesting to see the statement of reasons.
1.C. THE STRENGTHENING OF THE CASE FOR AN OVERRIDING PUBLIC INTEREST
The attention of DG RTD is drawn to the profound consequences of its initial reply to GestDem 2013/3351, available at http://www.asktheeu.org/en/request/perso....
DG RTD has admitted that the prior notification DPO-3398 has two false declarations and that its legal basis is essentially non-existent. Consequently, every single DG RTD external financial audit of the last ten years is marred by numerous grave infringements of Regulation No 45/2001. It follows therefore that the personal data the annexes to the final audit reports invariable contain are unlawfully therein.
Essentially, in a case before the General Court DG RTD (and the Commission services) may not rely on final audit reports as any kind of evidence of the auditee's (FP6 contractor or FP7 beneficiary) non compliance with the contractual requirements about personnel costs, simply because such evidence is inadmissible. The audits have been conducted solely pursuant to articles FP6.II.29 and F7.II.22, that is to say private law contracts. Furthermore, in such a context the Commission services - and the contractual auditors (authorised representatives) - do not rely on the Commission's prerogatives a public authority. It all boils down to the fact that in such a context the Commission services are prohibited by Regulation No 45/2001 to process personal data of third parties to the audited contracts without the express consent of the data subject. The audit takes place in the total ignorance of the data subjects whose personal data the Commission services illegally process.
The Commission services cannot and must not even consider advancing arguments that evidence (i.e. personal data of third parties to the contracts/agreements) in their possession tainted by grave infringements of Union law and marred by false declarations in statutory instruments (i.e. DPO-3398) may under any circumstances be relied upon an Institution for pecuniary claims in private law contracts against its contractual counter-party (the poor FP6 contractor or FP7 participant).
In circumstances like the above, it is patently obvious that there is a case for the full release of the requested documents in order to unearth the gravely illegal conduct of DG RTD.
2. STATUS OF DG RTD INITIAL REPLY
DG RTD undertook to dispatch an initial reply by the 30th of September, that is to say 59 working days after the registration of the application, which is nearly twice the maximum time-limit of Regulation No 1049/2001.
DG RTD has failed to provide the initial reply by the time-limit itself has set.
I would therefore be obliged if DG RTD would dispatch the initial reply without further delays.
Yours faithfully,
Mr. Sifis RAPTIS
Dear Mr Raptis,
Thank you for your email of 5 October 2013 regarding the status of your
initial application for access to documents registered under the above
mentioned reference. We have taken good note of your additional comments
in support of full disclosure of the requested documents and will address
them in the framework of our initial reply.
We would like hereby to sincerely apologise for the unexpected delay in
processing your request and assure you that we are doing our utmost in
order to provide you with our response as soon as possible.
However, due to the nature of the requested documents, their analysis with
a view to grant you the widest access as possible, has taken some time.
Moreover, larges files had to be examined and several services consulted.
Our response is now being finalised and will be sent to you as soon as it
is approved by our hierarchy.
We thank you very much in advance for your kind understanding.
Yours sincerely,
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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Dear Research and Innovation (RTD),
I would like to thank DG RTD for informing me on 14/10/2013 about the status of initial reply to the application GESTDEM 3654-2013.
Nearly ten working days on , DG RTD has not even provided a single document.
Unless DG RTD is pursuing its "usual" and "recent" practice of concealing from the public its policies and practical rules DG RTD applied in its external financial audits, all requested documents are subject to a full disclosure - due to an overriding public interest on several grounds - except personal data of third parties.
Some grounds of an overriding public interest are to scrutinise:
Whether the Research DGs have expressly instructed audit firms to process personal data of third parties to the audited FP6/FP7 project actions.
Whither the Research DGs have taken all measures to ensure that article 57(2) has been complied with.
Whether the Research DGs have caused both the audit firms and the auditees (FP6 contractor, FP7 beneficiary) to infringe the national data protection legislation.
In the light of the above considerations, the granting of the "widest access possible" entails just redacting the parts of the documents disclosing personal data. Everything else is to be fully disclosed. Of course, a "widest access possible" is meaningful only if DG RTD is to comply legality and NOT try to conceal its illegal policies in external financial audits.
In sum, DG RTD is obliged to release without additional delays all documents falling under the scope of this application, except the very occasional personal data contained in any document.
Yours faithfully,
Mr. Sifis RAPTIS
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Sent a follow up to Generaldirektion Forschung und Innovation again.
Dear Mr Raptis,
We refer to your e-mail dated 30/07/2013 in which you make a request for
access to documents, registered on the same day under the above mentioned
Gestdem reference number.
Please find enclosed the reply of the Directorate-General for Research and
Innovation.
Yours faithfully,
Silvia BOJINOVA
Head of Unit
[1]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
Dear Mr Raptis,
We refer to your e-mail dated 30/07/2013 in which you make a request for
access to documents, registered on the same day under the above mentioned
Gestdem reference number.
Please find enclosed the reply of the Directorate-General for Research and
Innovation.
Yours faithfully,
Silvia BOJINOVA
Head of Unit
[1]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
Dear Mr Raptis,
We refer to your e-mail dated 30/07/2013 in which you make a request for
access to documents, registered on the same day under the above mentioned
Gestdem reference number.
Please find enclosed the reply of the Directorate-General for Research and
Innovation. Please note that due to the large size of the attachments
further e-mails will follow.
Yours faithfully,
Silvia BOJINOVA
Head of Unit
[1]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
Visible links
2. mailto:[email address]
3. http://ec.europa.eu/research
Dear Mr Raptis,
We refer to your e-mail dated 30/07/2013 in which you make a request for
access to documents, registered on the same day under the above mentioned
Gestdem reference number.
Please find enclosed the reply of the Directorate-General for Research and
Innovation.
Yours faithfully,
Silvia BOJINOVA
Head of Unit
[1]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
Visible links
2. mailto:[email address]
3. http://ec.europa.eu/research
Dear Research and Innovation (RTD),
This is a confirmatory application that is to be forwarded to the Secretariat-General.
*****************
Dear Secretariat-General,
A confirmatory application is hereby submitted for requests #4, #5, #6, #7, #8, #9, #13, and #14.
The DG RTD initial response is analysed and arguments are advanced that DG RTD incorrectly applied the exceptions of article 4 of Regulation 1049/2001 to refuse access. In some cases, DG RTD failed to identify several documents, which DG RTD manifestly holds.
1. Request #4 – Time-sheets
The DG RTD initial response is that no time-sheet is held as regards the three audits for which the audit notification letters were disclosed. Then DG RTD went on to say that time-sheets are protected by the confidentiality obligations of the FP6 contract and FP7 grant agreement.
The DG RTD argument about the confidentiality is based on mere contractual provisions (i.e. FP4 or FP5 or FP6 contract); such a contract binds the Commission and the contractors only, and therefore does not have a bearing on citizens rights enshrined in Union law. Consequently, the contractual confidentiality clauses have nothing to do with the exceptions of article 4 of Regulation 1049/2001. The obligations of a private law contract like an FP6 contract cannot and do not take precedence over Regulation 1049/2001, and consequently any refusal to disclose a document must be based on the exceptions of article 4.
For the sake of argument, if DG RTD holds the requested time-sheets, then DG RTD ought to have considered the partial disclosure of the time-sheets, such that article 4(1)(b) and 4(2) first indent would have been complied with. For instance, blanking out the name of the individual, the auditee and the project(s), would have ensured full compliance with the exceptions of article 4 of Regulation 1049/2001.
It is respectfully submitted that DG RTD did not carry out a thorough search for documents, and therefore the Secretariat-General should undertake a fresh search for documents.
2. Request #5 – Statement of content
The DG RTD initial response implicitly states, inter alia, that DG RTD does not hold scanned copies of the documents collected at the field audits, and which documents ended up in the possession of DG RTD. Whereas the applicant cannot question such an implicit statement with the information at hand, nevertheless the DG RTD initial response amounts to an implicit statement that DG RTD neither scans the documents it collects in audits, nor does DG RTD use an information system with such functionality.
The applicant respectfully requests that the Secretariat-General review the DG RTD initial response.
3. Request #6 - Recovery Orders
In view of DG RTD having expunged the identities of the auditees, the audited projects, and the data subjects, the applicant respectfully submits that further expunging parts of the documents was not necessary to comply with the exceptions of article 4 of Regulation 1049/2001. For instance, expunging more than what is necessary concerns the some 7 lines under the heading ‘Justification’, lower part of page 1 of Annex 6a, Recovery Order SI2387848. Since neither the identity of the auditee nor the identity of the audited projects are disclosed, there is no reason to withhold the justification of the recovery order.
The applicant respectfully requests that the Secretariat-General review the DG RTD initial response.
4. Request #7 - Debit Notes
The argument about the Recovery Orders applies equally to the Debit Notes.
5. Request #8 – Audit Manuals
As a preliminary remark, the partially released FP7 Audit Manual is a document drawn up after 16/1/2012, because in page 5 it cites “The Guide to Financial Issues relating to FP7 Indirect Actions (16/1/2012)”. Request #8 was framed in terms of the Court’s Annual Report of Year 2010, published in the Official Journal on 10/11/2011. Consequently, either there is an earlier version of the FP7 Audit Manual that the Secretariat-General is to consider its release, or prior to 10/11/2011 that manual was not provided to the external audit firms.
5.a. Reliance on article 4(1)(a) forth indent of Regulation 1049/2001
In several applications under Regulation 1049/2001 submitted via asktheeu.org other applicants have taken issue with the reliance on that provision to justify the partial release of documents. It is argued that:
1. The ‘financial policy’ is fundamentally different from the ‘financial interests’, and therefore reliance on the public interest as regards the financial policy to refuse total access is entirely unjustified.
2. The big problems of the DG RTD financial audits with Regulation 45/2001 – in particular that no prior notification of article 25 of Regulation 45/2001 was applicable to the DG RTD audits, which DG RTD admitted in the initial response – precludes any reliance on the ‘public interest’. The Commission services cannot argue that in their external financial audits the Research DGs infringed Regulation 45/2001 to serve the public interest. In fact, the public interest was manifestly harmed by those infringements.
3. By providing copies of the FP6 & FP7 Audit Manuals to external audit firms, DG RTD relaxed the absolute prohibition of that provision. In case copies of those manuals were provided to subcontractors of the audit firms (e.g. members of the Polaris Group), it impossible to see how this is compatible with article 4(1)(a) forth indent
In conclusion, DG RTD cannot rely on that provision to refuse access.
5.b. Reliance on article 4(2) third indent – purposes of audits
5.b.i. Flawed logic, attempt to conceal infringements of Regulation 45/2001
The DG RTD logic of the fifth paragraph of page 4 “The expunged parts in both FP6 and FP7 …. current and future audits” is profoundly flawed. It is based on the premise that the effectiveness of the audit methods depends on keeping them secret, which manifestly flies in the face of the publications of auditing standards.
It is nearly certain that DG RTD has not published any kind of working paper about how a financial audit is supposed to be conducted. On the contrary, DG COMP has published a voluminous anti-trust investigations manual. Moreover, the Research DGs have not published any document of the kind ‘code of conduct’, or equivalent, regarding the field audit. Therefore, an auditee is in the dark about what auditors are entitled to request in a field audit; the only ‘guidance’ is the contractual provisions FP6.II.29 and FP7.II.22.
In fact, maintaining secrecy in certain aspects of the audits allows the conduct of unlawful audits, which is manifestly the case because of the infringements of Regulation 45/2001.
The applicant respectfully puts to the Commission services that, contrary to the DG RTD assertions, the expunged parts of the manuals set out the unlawful policy of the Research DGs to process personal data of third parties to the audited projects, which is a manifest infringement of articles 5, 7, 13, 23, 25 and 28(1) of Regulation 45/2001.
5.b.ii. DG RTD financial audits are not an exercise of public authority
Article 4(2) third indent of Regulation 1049/2001 concerns audits in which an Institution acts as a public authority. OLAF routinely refuses access to documents about its investigations pursuant to that provision; in such a context OLAF has been acting as a public authority. DG COMP has on occasions refused access to documents about its anti-trust investigations for the very same reason.
About 80% of the DG RTD audits were externalised to private audit firms. Article 57(2) of the Financial Regulation 1605/2002, as amended, expressly prohibits an Institution to assign to a private sector entity tasks entailing the exercise of public authority powers or of discretionary power of judgement.
The financial audits have been pursued solely on the basis of the contractual provisions FP6.II.29 and FP7.II.22. The General Court has consistently held that the financial audit of a research project is not an exercise of the prerogatives of a public authority. Furthermore, the Commission has consistently maintained before the General Court that financial audits are mere contractual measures, where the Commission does not rely on the said prerogatives.
In view of the above, the Commission services should not even attempt to argue that the DG RTD financial audits are covered by article 4(2) third indent of Regulation 1049/2001.
5.c. Undisclosed other manuals
The applicant respectfully points out that there are other manuals, which DG RTD overlooked. Very briefly, the following document fall under the scope of request #8:
1. FP5 audit manuals
2. The other volumes of the FP6 Audit Manuals
3. The other volumes of the FP7 Audit Manuals
6. Request #9 – Guidance papers to audit firms
DG RTD totally refused access to the documents under (d), (e), (f), and (g). The DG RTD reasoning to refuse access is entirely flawed for the very same reasons set out for request #8 above.
Moreover, from the titles of the documents under (d) and (g) it unavoidably follows that those two documents disclose the DG RTD policy to process personal data of third parties to the audited projects. It is reasonable to conclude that the real reason of the DG RTD total refusal to grant access is to avoid the disclosure of further evidence proving the unlawful personal data processing.
The reliance on article 4(3) §2 by DG RTD to totally refuse access indicates a profound lack of understanding of the exceptions of article 4 of Regulation 1049/2001. Request #9 concerns documents DG RTD handed over to the external audit firms. It means that they are not internal documents, and therefore they are not covered by article 4(3) §2.
The applicant respectfully draws the attention of the Secretariat-General to the implications of the DG RTD reliance on article 4(3) §2 in so far the fairness and consistency of the DG RTD financial audits are concerned. Internal opinions and preliminary consultations have no place in financial audits externalised to audit firms, especially since the total number of audits is thousands. It seems that in the initial response DG RTD just advanced excuses without having thought through what were the ramifications of its arguments to totally refuse access.
The applicant maintains that:
- The documents under (d) to (f) are to be full disclosed
- DG RTD did not carry out a thorough search for documents, and therefore several documents were not disclosed at all
7. Request #13 – reviews of working papers
As a preliminary point, the applicant respectfully puts to the Secretariat-General that DG RTD did not carry out a proper search for documents. It cannot be accepted that a meagre audit checklist concerning FP7 is the only document falling under the scope of request #13. A similar audit checklist must have been drawn up for FP5 and FP6.
The reliance on article 4(2) third indent to refuse total access is profoundly flawed. Page 3 of the released checklist is about personnel costs, which proves yet again the policy of DG RTD to unlawfully process personal data of third parties to the audited FP7 grant agreements.
The Secretariat-General is referred to the arguments for requests #8 and #9 above, which have refuted the DG RTD reliance on the exceptions of article 4 of Regulation 1049/2001.
8. Request #14 – straightforward applicability of auditing standards
In its replies to the remarks of the Court of Auditors the Commission stated “Accordingly, the Commission does not consider that straightforward application of the Auditing Standards on reliance on work of other auditors is appropriate in this case”. It is self-evident that by advancing such a reply to the Court the Commission services had carried out an analysis of the underlying matter. It is impossible to argue that the analysis did not involve drawing up a few paragraphs.
If the DG RTD initial response were to be taken at its full face value (no documents are held), it must be concluded that the Commission reply to the Court on this particular matter is wholly arbitrary. Put differently, the Commission misled the Court and the public.
There is therefore an absolute dichotomy: either there are documents falling under request #14 that are to be disclosed, or the Commission misled the Court and the public.
In my view, there are indeed documents, but DG RTD chose not to disclose them because the documents would provide further proof of the unlawfulness of the DG RTD financial audits. The Secretariat-General is obliged to undertake a fresh search for documents (perhaps consulting other Directorates-General that have managed FP5, FP6 and FP7 projects) and release them.
9. Overriding public interest
Some of documents disclosed in the initial response have provided further proof that DG RTD has adopted a policy of processing personal data of third parties to the audited projects, in violation of numerous provisions of Regulation 45/2001. That there was no prior notification covering the DG RTD financial audits prior to DPO-3398.1 (April 2011) is in itself highly problematic. The two false statements of DPO-3398.1 and its non-existent legal basis prove that DG RTD went over the top in its financial audits.
It is self-evident that there is an overriding public interest for the full release of all documents falling under the scope of the confirmatory application.
Yours faithfully,
Mr. Sifis RAPTIS
Dear Mr. Raptis,
I hereby acknowledge receipt of your confirmatory application for access
to documents dated 26^th November 2013, sent by mail to DG RTD, and
registered on 28^th November 2013 (Ares(2013) 3590034).
In accordance with Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents, you will receive an
answer to your request within 15 working days (19/12/2013).
Yours sincerely,
BLURIOT-PUEBLA Madeleine
Cellule 'Accès aux documents'
European Commission
SG/B/5 - Transparence
BERL 05/330
B-1049 Brussels/Belgium
+32 2 296 09 97
[1][email address]
Dear Mr Raptis,
Please find attached a letter regarding your confirmatory application for
access to documents (Gestdem 2013-3654).
Yours sincerely,
Priscille Schiltz
SG B5 - Transparency, 'Access to documents'
Dear Mr Raptis,
Please find attached a letter regarding your confirmatory application for
access to documents (Gestdem 2013-3654).
Yours sincerely,
Priscille Schiltz
SG B5 - Transparency, 'Access to documents'
Dear Sir,
Please find attached a letter concerning your confirmatory application for
access to documents (GestDem 2013-3654).
Annex:
Kind regards,
Priscille Schiltz
European Commission
Secretariat General
Unit B5 "Transparency"
Dear Research and Innovation (RTD),
I would like to thank the Secretariat-General for the reply of 3/2/2014 to the confirmatory application GestDem 2013-3654, http://www.asktheeu.org/en/request/671/r....
I would therefore be obliged if DG RTD would pass on my thanks to the Secretariat-General
Yours faithfully,
Mr. Sifis RAPTIS