FP7 extenral finnacial audits, partiallu released FP7 Audit Manauls, documents cited in the manuals

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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:

The present application pursuant to Regulation No 1049/2001 concerns documents whose existence is established by the cery contents of the partially released FP7 Audit Manual in the application GestDem 2013/3349, http://www.asktheeu.org/en/request/finan....

I. PAGE 2 OF PARTIALLY RELEASED FP7 AUDIT MANUAL

The contents of rows 6 - 8 of table 'Acronyms’ contain abbreviations of what is referred to herein as an 'entity'. The word 'entity' is used in the broadest sense of the word. To illustrate the meaning of ‘entity’ we consider the first row of the table and the ‘entity’ corresponding to the 'EC Grant Agreement'. The ‘entity’ is every different version of the FP7 grant agreement. A second illustration is the ‘entity’ of the last row 'Description of Work' which is the Annex I of the FP7 grant agreement.

1. Please provide me with a copy of the most relevant document (the identification of the document is left to the discretion of the Commission services) establishing the entity found in the expunged entry of sixth row of the table 'Acronyms'. For instance, if that were the case of the European Commission a reference to the Treaty of the European Union would be sufficient.

2. Please provide me with a copy of the most relevant document (the identification is left to the discretion of the Commission services) establishing the entity found in the expunged entry of seventh row of the table 'Acronyms'.

3. Please provide me with a copy of the most relevant document (the identification is left to the discretion of the Commission services) establishing the entity found in the expunged entry of the eight row of the table 'Acronyms'.

II. PAGE 5 OF THE PARTIALLY RELEASED FP7 AUDIT MANUAL

Page 5 has the title ‘INTRODUCTION’. There is table consisting of 11 rows listing a number of documents that are relevant to the FP7 audits.

4. Please provide me with a copy of the document(s) referred to in the expunged fourth row (third bullet) of the table.

5. Please provide me with a copy of the document(s) referred to in the expunged tenth row (ninth bullet) of the table.

6. Please provide me with a copy of the document(s) referred to in the expunged eleventh row (tenth bullet) of the table.

III. PAGE 29 OF THE PARTIALLY RELEASED FP7 AUDIT MANUAL

The lower part reads:

“For tax and social charges please refer to the following links
[Line expunged]
ftp://ftp.cordis.europa.eu/pub/fp7 Idocs/eligibility-taxes-charges en.pdf”

7. Please provide me with a copy of the HTML (i.e. web) page, or equivalent, indicated by the expunged link.

8. Please provide me with a copy of every single document pointed to, or expressly referred to, by contents of the expunged link.

The following clarifications are made regarding request #7:
- In case the expunged link is indeed a web page, the request is a simple print-out of that page.
- In case the expunged link is a FTP link (file transfer protocol), the request is to be interpreted as a print-out of the contents of the FTP directory (i.e. file folder). Put differently, the request is the ‘statement of content’ of the FTP directory.

The following clarifications are made regarding request #8:
- In case the expunged link is indeed a web page, the request is about the documents which the web page refers to, with the reference being either a document title or by HTML or FTP links.
- In case the expunged link is a FTP link (file transfer protocol), the request concerns the documents found in the aforementioned ‘statement of contents’.

IV. FURTHER OBSERVATIONS

In my view, it is self-evident that there is at least one document for each of the requests #1 - #7. Even if DG RTD adopts a decision to totally refuse access, DG RTD will be obliged to provide the applicant with sufficient information about the document in question (e.g. document title and date it was drawn up, intended readership) and a statement of reasons about the total refusal.

Yours faithfully,

Kostas VITSOS

Generaldirektion Forschung und Innovation

1 Attachment

Dear Mr Vitsos,

 

Thank you for your email dated 6 October 2013.  We hereby acknowledge
receipt of your application for access to documents, which was registered
on 9 October 2013 under reference number GestDem 2013/5010.

 

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 30
October 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

 

 

 

References

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

Generaldirektion Forschung und Innovation

1 Attachment

 

Dear Sir,

We refer to your e-mail dated 9/10/2013 in which you make a request for
access to documents, registered on 06/10/2013 under the above mentioned
Gestdem 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 30/10/2013.

An extended time limit is needed in order to contact our relevant services
to ensure the widest possible treatment of your application.

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 21/11/2013.

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

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),

The extension of 15 working days in accordance to article 7(3) of Regulation 1049/2011 expired on 21 November. Six working days on, DG RTD has not provided the initial reply.

I would therefore appreciate if DG RTD would swiftly provided me with the initial reply.

Yours faithfully,

Kostas VITSOS

Generaldirektion Forschung und Innovation

1 Attachment

Dear Mr Vitsos,

 

Thank you for your email of 1^st December 2013 enquiring about the status
of your initial application for access to documents registered under the
above mentioned reference number.

 

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. 

 

At the same time we would like to inform you that our reply has already
been processed and will be sent to you as soon as it has been approved
internally 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

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

Generaldirektion Forschung und Innovation

4 Attachments

Dear Mr Vitsos,

We refer to your e-mail dated 6/10/2013 in which you make a request for
access to documents, registered on 9/10/2013 under the above mentioned
Gestdem reference number.

Please see attached the reply of the Directorate-General for Research and
Innovation together with its annexes.

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),

The present document is a confirmatory application pursuant to article 7(2) of Regulation No 1049/2001 regarding GestDem No 2013/5010.

It is kindly requested that DG RTD transfer it to the Secretariat-General which is responsible to handle it according to the Commission Decision 937/2001.

A. INTRODUCTION

The confirmatory application is not short because it is necessary to advance legal arguments in support of the full release of the documents at issue.

This chapter sets out the scene of this confirmatory application, in order to remind to the Secretariat-General that what is also at stake in the integrity of the Institution.

The Commission services have to realise that their completely unlawful refusals to grant full access to documents about the policy and operational aspects of the external financial audits of the Research DGs has not only exceeded all limits, but it has also compelled applicants to advance elaborate legal arguments about either the existence of documents or why access is to be granted.

Apparently, the Commission services are indifferent to legality when it comes to the FP6 and FP7, especially the extensional financial audits. Instead of coming to terms with the bitter truth, namely that their concealed policy of disregarding Regulation No 45/2001 and Directive 95/46/EC has come to an end, they continue unabashedly their ancillary 'policy' of flagrantly infringing Regulation 1049/2001 in order to prevent the disclosure of the illegalities of FP6 and FP7.

One wonders what are the ethics of the Commission services, in view of:

1. The two false statements in the prior notifications DG INFSO DPO-3338.1, DG ENTR DPO-3334.1, DG RTD DPO-3398.1 and DG MOVE DPO-3420.1 about a non-existing EDPS consultation and that no subcontractors are engaged, as well as the non-existing legal basis thereof.

2. DG CNECT having misled the President of the European Commission, this causing the misrepresentations in the letter of 30/8/2013 to the Ombudsman, Ares(2013)2952891 , http://www.asktheeu.org/en/request/583/r....

Turning to the application of the undersigned No 2013/3349, http://www.asktheeu.org/en/request/finan..., from the reply to the confirmatory application of 6/1/2014, the full text of the FP6 Audit Manual - On-the-Spot Audits has come into the public. It turns out that not a single line of that manual is protected by any of the exceptions of article 4 of Regulation 1041/2001, even though the Commission services have claimed that under article 4(1)(a) fourth indent and 4(2) third indent full disclosure was precluded. Even worse for the Commission services, the withheld parts of that FP6 manual show the illegal policy of processing personal data of third parties to the audited projects (the researchers).

In conclusion, the Commission services refuse full access to documents about the methods and processes of the FP6 & FP7 external financial audits in order to protect themselves from further revelations about the grave illegalities of every single external financial audit.

The above are not mere allegations, as the Commission services retort in their replies under Regulation 1049/2001. They are facts under the harsh light of the full public view.

B. WHOLLY INCORRECT RELIANCE ON ARTICLE 4(1)(a) FORTH INDENT

In asserting that article 4(1)(a) fourth indent is applicable to (i) the FP7 Audit Process Manual (request #4) and (ii) to the two CAR decisions (requests #5, #6) DG RTD is taking a wholly inexcusable leap of logic by equating ‘financial interests’ with ‘financial policy’. That exception of Regulation 1049/2001 protects the latter and not the former.

It must be stressed from the outset that, contrary to the DG RTD totally unsubstantiated assertion, the Union’s ‘financial policy’ has absolutely nothing to do the FP7 external financial audits of the Research DGs. If that is not self-evident to the Secretariat-General, it is respectfully suggested that the Secretariat-General and the Legal Services should seek the expert opinion of DG ECFIN to dispel any doubts they may be harbouring.

In a few recent applications pursuant to Regulation No 1049/2001 applicants have refuted the premise that ‘financial policy’ can be equated with ‘financial interest’ or that documents about the Union’s ‘financial interests’ are subject to the exception of article 4(1)(a) fourth indent of Regulation No 1049/2001. Two examples are:

1. GestDem No 2013/3375, http://www.asktheeu.org/en/request/dg_cn..., confirmatory application of 31/7/2013, section ‘3. Protection of the public interest as regards the Union’s financial policy’.

2. GestDem 2013/3573, http://www.asktheeu.org/en/request/dg_rt..., confirmatory application of 22/8/2013, section “1.1. Reliance on article 4(1)(a) forth indent of Regulation ‘Financial Policy’”.

The applicant subscribes to a very large extent to the arguments in the above two applications and kindly request that the Commission service duly take them into consideration.

Finally, the full disclosure by DG JUST of its own Audit Manuals, which is described below, shows that the exception of article 4(1)(a) fourth indent is not applicable.

In conclusion, article 4(1)(a) fourth indent is not applicable to the documents at issue.

C. INCORRECT RELIANCE ON ARTICLE 4(2) THIRD INDENT

C.1. FP7 AUDIT PROCESS MANUAL

It is noted that the FP7 Audit Process Handbook is essentially an ‘Audit Manual’.

Article 4(2) third indent protects the purposes of a concrete audit and not audits as abstract measures. Since, first, an Audit Manual merely sets out rules of practice and rules of conduct according to which auditors carry out their tasks, and second, such manuals follow the international standards on auditing, it must be concluded that the particular approaches, methods and techniques documented in a LAWLFUL Audit Manual are fully understood (in fact, expected) by professional auditors. Therefore, they cannot be subject to a partial release.

Given that an Audit Manual concerns abstract measures, and not a concrete audit, its contents do not all under the ambit of article 4(2) third indent (purposes of audits). Furthermore, the PURPOSE OF AN AUDIT, is not related with the Audit Manual according to which an audit is carried out.

The above reasoning is fully supported by the publication, or the full release, of the following Manuals (three concern audits and the last two ones investigations):

1. The European Court of Auditor’s practice in fully publishing its own manuals, which are more then 300 pages long.

2. DG JUST granting full access to several documents about how officials conduct external financial audits of grants, http://www.asktheeu.org/en/request/contr....

3. DG JUST granting full access to several documents about how audit firms conduct external financial audits of DG JUST and DG HOME grants, http://www.asktheeu.org/en/request/audit....

4. OLAF’s publications of a 130-pages Operational Manual (in force until 31/1/2012), which had more than 15 annexes. OLAF’s investigations are protected by the very same provision. This did not prevent OLAF from disclosing more than 200 pages about its methods of investigations.

5. The DG COMP Manual on the Anti-Trust Investigations, which is over 100 pages long.

It is highly noteworthy that the DG JUST Audit Manuals concern grants that are governed, essentially, under the same legal provisions as those of the Research DGs. There is no reason that the FP7 Audit Process Handbook is to be partially released, whereas the DG JUST Audit Manuals are fully released.

The DG RTD logic would have precluded the full release of all the above manuals. Since this would run contrary to logic and also to what has indeed taken place (the manuals were published), DG RTD cannot in any event rely on article 4(2) third indent to refuse full disclosure.

C.2. CAR DECISIONS, REQUESTS #5 & #6

The two documents were assessed without any distinction between them. In as much it can be inferred from their titles, it is immediately obvious that ‘materiality criteria on insignificant errors’ is very different from ‘netting off on systematic errors’, both in terms of the subject matter and also in terms of the different steps from the announcement of an audit to ‘netting off……’. Consequently, if the Secretariat-General refuses full access, then it will have to provide a different statement of reasons for each document.

The following paragraphs examine the DG RTD justification of the total refusal of access on the grounds:

“The concerned documents provide more detailed information on the approaches and methodologies for the auditors regarding the calculation and reporting of the audit findings that a standardized practice audit process handbook…. Any leakage of information in this field would have a negative financial impact on the Union’s budget”

Such a justification is both divorced from reality and also its reasoning is fundamentally flawed. This is outlined below.

First, DG RTD released in GestDem 2013/3349, http://www.asktheeu.org/en/request/581/r..., the structure and content of FP7 final audit reports, which are found in the annexes of the framework contracts of the audit firms. The actual processes of carrying out an external financial audit is not a ‘secret’. Professional auditors do it for tens of thousands of economic operators every year, as provided by the statute. The partially released FP7 Audit Manual provides addition, specific information about those audits. Consequently, on those particular grounds the total refusal for access to the two CAR decisions is not justified.

Second, In the reply to the confirmatory application GestDem 2013/3349, http://www.asktheeu.org/en/request/581/r..., the Secretariat-General acknowledged that withheld parts of the FP6 Audit Manual – On the Sport Audits that were quoted by that applicant (i.e. the undersigned) are indeed the withheld parts of that FP6 manual. On an objective basis, nothing in the withheld parts of the FP6 manual has anything to do with a ‘negative financial impact on the Union’s budget’. A further consequence is that on those particular grounds the total refusal for access to the CAR decisions is not justified.

C.3. CONCLUDING REMARK

Article 4(2) third indent (protection of the purposes of audits) is not applicable to the documents at issue

D. REQUEST #8

The undersigned is not convinced with DG RTD assertion that the document under request #7 and #8 is the document found at the link ‘ftp://ftp.cordis.europa.eu/pub/fp7/docs/eligibility-taxes-charges_en.pdf’.

Unless the FP7 Audit Manual was drawn up in a recklessly negligent manner and without even a rudimentary editorial control, it cannot be accepted that the expunged line (request #7) points to the document ‘ftp://ftp.cordis.europa.eu/pub/fp7/docs/eligibility-taxes-charges_en.pdf’.

First of all, there is no logical reason for the authors of the manual to refer to ‘links:’ in the plural, whilst both links refer to very same document. It must be presumed that the authors knew very well the contents of those two links; that the expunged linked was inserted there shows that it was pointing to another document.

Second, if it is to be accepted that the expunged link points to the same document, then there was no reason to blank out that line from the partially released FP7 Audit Manual. Even if that link was unnecessarily expunged, DG RTD has had the opportunity to let the applicant know the exact content of the expunged linked. That DG RTD did not do so strongly suggests that the expunged link points to another document and not to the released document “Eligibility of taxes and charges related to personnel under FP6 and FP7”.

In case the document of request #7 is a web page in the intranet of the Commission, then it may have pointers/links to other documents, which means that other documents fall under request #8.

In view of the above considerations, it has to be inferred that DG RTD refused to disclose the document under request #7 (and possibly #8), without a statement of reasons.

E. REQUEST #5 & #6 - FAILURE TO PROVIDE A STATEMENT OF REASONS OF NOT GRANTING PARTIAL ACCESS

For the two CAR decisions, DG RTD just stated that “… such partial release was not possible”. This is not a statement of reasons, but in essence a mere tautology.

If the Secretariat-General reaffirms the DG RTD decision, then it is under an obligation to provide an adequate statement of reasons, such that the justification is amenable to judicial review.

F. CONFIRMATORY APPLICATION

The Commission services have to bear in mind that fresh applications under Regulation 1049/2001 may be lodged for the FP7 audit manual, in which case DG RTD will have to provide access to the expunged few lines of the manual that lead to this application. This will provide a second check of the completeness of the reply to the confirmatory application.

The confirmatory application concerns:

1. The partially released FP7 Audit Process Manual (requests #1 & #4).

2. The totally refused two CAR decisions (requests #5 & #6)

3. The documents of requests #7 & #8.

It is expected that the Secretariat-General will dully consider the above-mentioned arguments.

Yours faithfully,

Kostas VITSOS

Generaldirektion Forschung und Innovation

Dear Sir,

Thank you for your email dated 08/01/2014.

We hereby acknowledge receipt of your confirmatory application for access to documents, which was registered on 09/01/2014 under reference number GestDem 2013/5010– Ares(2014) 35137.

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 30/01/2014. In case this time limit needs to be extended, you will be informed in due course.

Yours faithfully,

Carlos Remis
SG.B.5.
Transparence.
Berl. 05/329.

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Dear Research and Innovation (RTD),

This email concerns the confirmatory application GestDem 2013/5010. It is to be forwarded to the Transparency Unit.

*********

Dear official of the Transparency Unit,

I refer to the acknowledgement of the registration of the confirmatory application GestDem 2013/5010 of 8/1/2014, http://www.asktheeu.org/en/request/fp7_e..., setting as the time-limit the 30th of January.

I would appreciate if you let me know the status of the reply.

Yours faithfully,

Kostas VITSOS

Generaldirektion Forschung und Innovation

2 Attachments

Dear Mr Vitsos,
 
Please find attached a note concerning your confirmatory application
GestDem 2013/5010.
 
 
Best regards,
 
Bernadett BERCZELI
Access to Documents
European Commission
Secretariat General
Unit SG.B4 – Transparency