Lack of reply by OLAF to European Parliament (OLAF investigation following European Parliament request dated 27.04.2012)

Die Anfrage wurde abgelehnt durch Generalsekretariat der Europäischen Kommission.

Dear Secretariat General (SG), Mr Kessler,

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 Written Response to European Parliament related to the investigation named in this letter of EP to Mr Kessler, Director General at OLAF: http://www.asktheeu.org/en/request/452/r...

The European Parliament replied that did not receive any notification from OLAF. See EP response here:
http://www.asktheeu.org/en/request/olaf_...

My initial questions ref. subject above are accessible from here
http://www.asktheeu.org/en/request/olaf_...
http://www.asktheeu.org/en/request/olaf_...

I request access to relevant OLAF documents and information in order to understand why OLAF did not reply to European Parliament.

Yours faithfully,

Mike Stabenow

Dear Secretariat General (SG),

This is a kind reminder that my request to access information and documents has been delayed.

Yours faithfully,

Mike Stabenow

Generalsekretariat der Europäischen Kommission

Dear Mr Stabenow,

Thank you for your email.

Could you please send us a copy of your initial request (you are giving us information about a request dated 27/04/2012)?

Yours faithfully,

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

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Dear Secretariat General #SG#,

The date in question (27.04.2012) is related to this document originating from European Parliament :

http://www.asktheeu.org/en/request/452/r...

Here is a copy of my initial request (copy paste)

*********

"From: Mike Stabenow "July 02, 2013 "

Dear Secretariat General (SG), Mr Kessler,

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 Written Response to European Parliament related to the
investigation named in this letter of EP to Mr Kessler, Director
General at OLAF:
http://www.asktheeu.org/en/request/olaf_...
The European Parliament replied that did not receive any
notification from OLAF. See EP response here:
http://www.asktheeu.org/en/request/olaf_...

My initial questions ref. subject above are accessible from here
http://www.asktheeu.org/en/request/olaf_...

http://www.asktheeu.org/en/request/olaf_...
I request access to relevant OLAF documents and information in
order to understand why OLAF did not reply to European Parliament.
Yours faithfully, Mike Stabenow"

*********

Thank you very much.

Yours faithfully,

Mike Stabenow

Generalsekretariat der Europäischen Kommission

2 Attachments

Dear Mr Stabenow,

 

Please find herewith a note from our director Ms Kneuer for your
information.

 

Best regards,

 

  [1]cid:image001.png@01CE1437.0F722A20

European Commission

DG OLAF

Unit C.4- Legal advice

 

 

 

 

References

Visible links

Dear Secretariat General (SG),

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

I am writing to request an internal review of Secretariat General (SG)'s handling of my FOI request 'Lack of reply by OLAF to European Parliament (OLAF investigation following European Parliament request dated 27.04.2012)'.

Dear Ms Kneuer,
Thank you for your reply dated 31.07.2013 available here http://www.asktheeu.org/en/request/622/r...
In this letter it is mentioned at page 2 point 2.2 par. a) that “OLAF`s investigation on that case is concluded”. From the first page of OLAF letter it is clear that OLAF refers to an investigation opened and concluded following the letter from European Parliament dated 27.04.2012 available here http://www.asktheeu.org/en/request/452/r... .

Most probably, there is a typo error in page 1 of OLAF letter, in respect of the date (it is mentioned 27.04.2013 instead of 27.04.2012) but from the context it is clear that OLAF refers to letter from European Parliament / Committee on Budgetary Control available under the link specified above (OLAF says that EP letter was registered in May 2012...it is not possible to register a letter of 2013 in 2012. So there is an evident typo error.

The OLAF letter say that “the Final Report has been adopted and was forwarded to the competent national authorities of the Member State concerned and EU body concerned”. OLAF also says that “the matter is now under judicial investigation…”

In Mr Theurer reply of 30.07.2013 available here (http://www.asktheeu.org/en/request/olaf_... ) it is written that OLAF replied to European Parliament on 9 July 2013 stating that the investigation was closed with no recommendation.

There is a clear contradiction between the two replies (i.e. from EP and from OLAF).

In accordance to Regulation 1049, I request access to OLAF letter submitted to European Parliament on 9 July 2013 (integral text). Relevant details could be found at Budgetary Control Committee of European Parliament.

If not possible, I request a confirmation if OLAF case OF/2012/0391 mentioned at page 2 point 2.2 par. a) of this link http://www.asktheeu.org/en/request/622/r... refers to a case relating to Fundamental Rights Agency Vienna, Austria (FRA).
Thank you in advance.

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

Yours faithfully,

Mike Stabenow

Generalsekretariat der Europäischen Kommission

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.

Generalsekretariat der Europäischen Kommission

1 Attachment

Dear Mr Stabenow,

 

Your request below has been transferred today to OLAF who is competent and
independent concerning requests for access to documents (initials and
confirmatories).

Yours sincerely,

 

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

 

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Dear Secretariat General (SG), Dear Mr Simon,

Thank you for your acknowledgement. I sent Confirmatory application direct in OLAF E-mail. I however believe that I should send it via SG.

I will do it by separate email to SG. I would appreciate if you could follow the same channel of information SG - OLAF. Thank you very much.

Yours faithfully,

Mike Stabenow

Dear Secretariat General (SG),

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

I am writing to request an internal review of Secretariat General (SG)'s handling of my FOI request 'Lack of reply by OLAF to European Parliament (OLAF investigation following European Parliament request dated 27.04.2012)'.

DETAILS

I am writing to request an internal review of European Anti-Fraud Office (OLAF)'s handling of my FOI request '"Lack of reply by OLAF to European Parliament (OLAF investigation following European Parliament request dated 27.04.2012)"'.

The OLAF decision rejecting my request to documents and related information is available here http://www.asktheeu.org/en/request/622/r...
The exchange of correspondence is available here http://www.asktheeu.org/en/request/lack_...
The policy of Access Info Europe requires lodging the confirmatory application via its website Asktheeu http://www.asktheeu.org/en/request/olaf_...

DETAILS ABOUT CONFIRMATORY APPLICATION

Dear Mr Kessler,

According to Council Regulation 2001/1049 I would like to ask for a revision of OLAF`s decision dated 30.07.2013 (published in AsktheEU website on 31.07.2013). By that decision, all my requests to access documents and information were rejected.

1. At point 2.2 OLAF stated that it was not possible to identify any written document in order to satisfy my first two requests, as they are listed under points a) and b) in OLAF letter of 30.07.2013 published in “Access Info Europe” / website AsktheEU: http://www.asktheeu.org/en/request/622/r...

However I note that on 30/07/2013 Mr Theurer replied via AsktheEU as follows:
“I inform you that OLAF Director General replied on 9 July 2013 informing that the investigation was closed without recommendation.”
I assume that OLAF reply was submitted in written format. I would like to ask access to that Communication by OLAF (i.e. letter/email/note verbal/transcription of a phone call or any other format) dated 9 July 2013.

As I presented in my letter to Ms Kneuer dated 1ST August 2013, following her Letter available in asktheeu website http://www.asktheeu.org/en/request/lack_... there is a major and essential contradiction between the two replies (i.e. reply from European Parliament and reply from OLAF):
- OLAF stated that there is no physical existence of a written document to be granted access and
- Mr Theurer wrote that there was a reply from OLAF Director General dated 9 July 2013, stating that OLAF investigation was closed without recommendation.

Taking view to the specificity of the matter, the level of the two EU institutions (EP and OLAF) and the rank levels of the Sender and Recipient, I assume that the OLAF`s reply necessarily took a written format or at least a Note Verbal transcribed subsequently into a written document.

2. Furthermore, there is another substantive contradiction between the two replies:
- Mr Theurer wrote that he was informed by OLAF in 9 July 2013 that the investigation was closed without any recommendation and
- OLAF wrote that the investigation in that case is concluded, that the Final report has been adopted and forwarded to the competent national authorities of the Member State concerned and to the EU Body concerned.

OLAF does not reveal the name of the EU body concerned while Mr Theurer revealed it. See above the link to Mr Theurer` communication and relevant paragraph which reads:
“Concerning your request to communicate the name of the agency, it was the European Union Agency for Fundamental Rights (FRA)”.

Legal Arguments to support confirmatory application

Point 2.2 of OLAF`s letter dated 30.07.2013 contains a legal argument and a number of related case law invoked. OLAF states that there is no obligation to grant access to information but only to documents, provided that these documents exist.
My arguments to counterbalance the OLAF`s ones and to try to convince Director General of OLAF to grant me access to the initially requested documents/information are:

A. As to the presumption concerning the non-existence of a document (Terezakis case):

Indeed, I take note that there is a presumption of legality attached to OLAF statement related to the non-existence of documents requested. However, according to well established case law, that is a simple presumption which the applicant may rebut in any way on the basis of relevant and consistent evidence (see Judgment of the General Court of 26 April 2005 in Joined Cases T-110/03, T-150/03 and T-405/03, Sison v Council, par. 29 and Judgment of the General Court of 30 January 2008 in Case T-380/04, Terezakis v Commission, par. 155.).
Such “relevant and consistent evidence” is to be considered the public Reply by Mr Theurer dated 30.07.2013 stating that OLAF replied to EP in 09.07.2013. As explained above, such reply most probably took form of a written document. If it was only a phone call, according to practice in specific organizations as OLAF, such logs must be transcribed in written Note for archiving purposes. Therefore, in any case, a document in written format exists and can validly be considered for the purposes of my initial request.

In accordance to relevant jurisprudence, the presumption of legality attached to OLAF statement relating to the non-existence of documents requested to be accessed, must be applied by analogy when the institution declares that it is not in possession of the documents requested (see Judgment of the General Court of 19 January 2010 in Joined Cases T-355/04 and T-446/04, Co-Frutta v Commission, par. 155).This is the case at stake.

B. As to the overriding public interest combined with a duty of transparency towards to public
According to Judgment of the Civil Service Tribunal of 2 May 2007 in Case F-23/05, Jean-Louis Giraudy v Commission, paragraph 165:
“That being said, it has to be recognized that a culture of accountability has grown up within the Community institutions, responding in particular to the concern of the public to be informed and assured that malfunctions and frauds are identified and, as appropriate, duly eliminated and punished. The consequence of that requirement is that officials and other servants who hold posts of responsibility within an administration such as the Commission must take into account the possible existence of a justified need to communicate a degree of information to the public”.

In light of the above, I would like to ask OLAF to reconsider its position and to grant access to the documents as requested in my initial application. I will demonstrate below that the requested access is justified and is to be framed under both concepts, overriding public interest and duty of transparency towards to public.

The questionable problems identified at that EU Body concerned (FRA) are old, since 2005/2006, and apparently some relevant measures were never taken. Those old unresolved problems had severally multiplied to some new questionable problems as can be observed in several evidences presented in ASKTHEEU website, EU courts website, EU Ombudsman website, EDPS, etc). A collection of such evidences will be provided in a centralized overview, at the end of this letter as supporting electronic documents to help you to balance the interests at stake – privacy of individuals concerned and right of the public to transparency (to know what happens).

FRA problems escalated before several judicial and administrative bodies and that is costly and is supported by the public (from EU common budget). It also has a non-quantifiable cost in terms of reputation of EU system in its entirety (see examples below: FRA denied access to information, FRA transferred private data of individual(s) to a media company, FRA is accused of psychological harassment in some public cases, FRA issued a warning on a citizen after 2 initial requests and a confirmatory application and EU ombudsman intervened via asktheu website, and so forth. There are lots of examples under this website ). FRA is an EU body financed from community budget. FRA acts on behalf of the Union. In some cases it is obvious that FRA do not follow the Union Law.

For exemplification, as we can notice from FRA disclosure presented here http://www.asktheeu.org/en/request/how_m... and from the signed contracts for different legal services made available by FRA here http://www.asktheeu.org/en/request/tende... there are several cases closed and ongoing at FRA. The FRA is a small agency (under 100 employees) and the number of cases is disproportionate comparing with the number of employees. I see this as an issue of great public concern. A disclosure of the requested documents could clarify things in public interest. According to case law cited above the EU public has a right confirmed by EU court, to be informed and assured that any malfunctions and frauds are identified and, as appropriate, duly eliminated and punished.
Whoever is /are the author(s) or presumed authors should attach to their EU job position also the related risks and accountability because the consequence of that requirement mentioned above is that officials and other servants who hold posts of responsibility within an administration such as the EU Agency for Fundamental Rights (the FRA) must take into account the possible existence of a justified need to communicate a degree of information to the public.

As you know, OLAF opened some 4 or 5 cases at FRA, closed all those cases with no recommendation or follow up and this type of closure gave rise to continuation of those facts. I would like to recall you that, according to well established case law, Director General of OLAF cannot open an investigation, unless there are “sufficiently serious suspicions” relating to acts of fraud, corruption or other illegal activities detrimental to the financial interests of the EU (see judgments of 10 July 2003, Commission of the European Communities v European Investment Bank, case C- 15/00 and Commission of the European Communities v European Central Bank, case C-11/00, paragraphs 164, respectively 141. See also “Activity Report of the OLAF SUPERVISORY COMMITTEE for January 2012 – January 2013”).

When OLAF opened those cases at FRA there were “sufficiently serious suspicions” otherwise the OLAF Director could not have opened them and his internal advisors would not have advised him as such. There were OLAF resources involved, material and human, checking on spot as disclosed in case 0488, specialists assigned to the cases and so on.
However the cases were closed, there was no follow up, no recommendation and apparently, any other proper way of addressing the identified shortcomings at FRA level (for example, by Governing Board of FRA or by European Commission’s officials nominated by Mr Theurer in his Public Response dated 30.07.2013 ).

In European Parliament website, sections related to Report on Budgetary Discharge of FRA mentioned at point 2 of this link http://www.asktheeu.org/en/request/684/r... and also in other several official EP/CONT Committee documents, there are several questions about conflict of interest, whistleblowing, cases before courts, Ombudsman, EDPS, questions which apparently never benefited some complete and proper replies, despite these replies were requested expressly by European Parliament and technically they are still pending. For instance see Question 58 under this link http://www.europarl.europa.eu/document/a... and the replies given by FRA (or better saying, the lack of proper replies because deviation from the subject could not constitute a response).
I would like to request access on any OLAF documents or information related to Questions 58, 59 and 60 under the link above.

If you allow me a theoretical extrapolation for the purposes of the present confirmatory application: If all cases are similar to Case OF/2007/0488 (see related OLAF Report released in 2013 to public domain and available here at pages 5 to 10 – redacted for a partial reading, http://www.asktheeu.org/en/request/453/r... ) then there is a full public legitimacy to ask for an integral or at least partial disclosure of the rest of OLAF reports, as they are listed here http://www.asktheeu.org/en/request/453/r... : 1. FRA Recruitments 2007 - 0488
2. FRA Procurements 2010 - 0711
3. FRA Mismanagement 2011 - 0753
4. FRA Forgery of a document 2013 - 0328.
and here in this letter dated 27/04/2012 from President of Budgetary Control Committee of European Parliament to OLAF http://www.asktheeu.org/en/request/452/r... To separate this case of 2012 about public procurement matters from the one of 2010 ref. “FRA Procurements 2010” I will be numbering this case as the fifth case ref.
5. FRA Procurement 2012 – 0391 (according to OLAF letter dated 30.07.2013 signed by OLAF`s Director, Ms Petra Kneuer )

From my perspective, OLAF report in case OF/2007/0488 reveals grave and some punishable facts, like misusing by some FRA employees of an annex of EU Staff Regulation in order to obtain higher benefits quantifiable in money. This issue was partially addressed in 28/07/2013 via asktheeu here http://www.asktheeu.org/en/request/heari... There are many other irregular or at least questionable situations in that report as abuse of law, recruitments not in line with purpose of EU legislation, poor management.

C. Legal argument on the irregularities and abuse of law identified in case 0488
In a very good and useful Study by OLAF jurists, available in Internet is written that:

“Abuse of law is regulated by Article 4(3) of Regulation 2988/95. A finding that there is an abuse presupposes: first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the Community rules, the purpose of those rules has not been achieved, and, second, a subjective element consisting in the intention to obtain an advantage from the Community rules by creating artificially the
conditions laid down for obtaining it; it is for the national court to verify the existence of an alleged abuse of law in accordance with the rules of evidence of national law. An abuse entails the obligation to reimbursement and is not in conflict with the principle of lawfulness.

OLAF reasons to close investigation OF/2007/0488 without recommendations are obscure enough from my perspective or at least unclear. OLAF wrote in its Final Case Report that there were no sufficient evidences to open disciplinary proceedings or follow up. This characterization is very much opened to questions. According to consistent jurisprudence: “There are evidences” or “there are no evidences”. This is the only legally valid approach. There is no place for concept “there are not sufficient evidences” when documents and registers shows that some FRA employees were paid higher allowances than the ones they were legally entitled and OLAF itself described that situation as irregularity. How many such irregularities of such caliber are needed for OLAF in order to make a recommendation, or to lunch a follow up case or a coordination case? As Kurt Weiss wrote under one link I provided above, Austria where FRA is headquartered is not a third country in order to justify that FRA employees misuse an Annex, part of the EU Legislation. That Annex was strictly reserved for staff serving in third countries. What FRA employees done under the poor management, identified as well by OLAF in its Report 0488, is to be assimilated as “irregularities and abuse of law” (See above the quote from OLAF public study).

Are there relevant information in OLAF`s possession (i.e. annexes to Report 0488 or any other subsequent report) if undue amounts were recovered from the respective employees?.

Even in such approach as in OLAF case 0488 (i.e. no sufficient evidences to open an disciplinary proceedings), since 2007 case on “FRA recruitments 2007 – 0488”, going through “FRA Procurements 2010 - 0711” and then through “ FRA Mismanagement 2011 - 0753” and then through “FRA Forgery of a document 2013 - 0328” and finally through a second round of “FRA Procurement 2012 – 0391” OLAF should have already been in the position to collect sufficient evidences to figure out what is happening at FRA and to decide at least some recommendations or a follow up, or disciplinary proceedings.

Are there any rules in place showing if OLAF is allowed to cumulate retroactively such irregularities as the ones mentioned in OLAF Report 0488? (to add irregularities from 0488 case to a current or future case).

EVIDENCES TO SUPPORT ARGUMENTS PRESENTED ABOVE.

As you can see in several postings, letters, emails and evidences available in AskTheEU website, including the ones from OLAF, disclosed partially here http://www.asktheeu.org/en/request/453/r... or evidences from the Court as Final Judgment in Case F – 58 of 2010 or several cases before the EU Ombudsman or EDPS, or another pending cases before EU courts there are real and evident problems at the EU Body concerned.
Thanks to Mr Theuer communication of 30.07.2013, now we know that the EU Body concerned mentioned in OLAF letter of 30.07.2013 is EU Agency for Fundamental Rights based in Vienna, Austria.
Links containing evidences to support my confirmatory application (not exhaustive list)
Cases before EU Ombudsman
CASES OPENED pending decision (overview taken from EU Ombudsman website)
(1). 26/07/2013: Access to documents http://www.ombudsman.europa.eu/en/cases/...

(2). 12/02/2013: The work relations with and the treatment of a Fundamental Rights Agency (FRA) employee/ failure to investigate psychological harassment http://www.ombudsman.europa.eu/cases/cas...

(3). 28/03/2012: Exclusion of an association from membership of the Fundamental Rights Platform
http://www.ombudsman.europa.eu/cases/cas...

(4). 06/07/2011: The European Union Agency for Fundamental Rights (FRA)’s response to allegations of psychological harassment and related issues http://www.ombudsman.europa.eu/cases/cas...
(5). 16/07/2007: Alleged failure to provide adequate information to an unsuccessful tenderer
http://www.ombudsman.europa.eu/cases/sum... (please connect this EU Ombudsman`s case to the case which escalated before EU General Court T-397/2011 http://eur-lex.europa.eu/LexUriServ/LexU... , for the same reason – refusal to provide bidders access to information to which they are legally entitled.
Cases before EU courts available in Curia website
1) Case F-58/10
2) Case 397/11
3) Case F-112/10
4) Case T-107/13
Case before EDPS
http://www.asktheeu.org/en/request/459/r...
http://www.asktheeu.org/en/request/459/r...
http://www.asktheeu.org/en/request/459/r...
http://www.asktheeu.org/en/request/459/r...
http://www.asktheeu.org/en/request/459/r...
For the purposes of granting access to my request in account of overriding public interest and duty of transparence, I believe that OLAF should confer with EDPS and EU Ombudsman on the other eventually new pending cases having as subject violation of data protection rules, or any other rights of the citizens. It is quite evident from the above, how much effort and money were involved in order to address the findings of EDPS. There were involved lawyers, media company, etc. They certainly did not volunteer for free to defend the FRA reputation. And finally the reputation was damaged because EDPS found that FRA violated some provisions of Data protection legislation. FRA is in charge with this fundamental right of EU citizens, including protection of individual data against abusive transfer to media companies, like for instance in the EDPS case.
http://www.asktheeu.org/en/request/459/r... (2 ANNEXES)
http://www.asktheeu.org/en/request/459/r... (Annex I)
http://www.asktheeu.org/en/request/459/r... (Annex II)
See also several postings in Asktheeu website and the replies of FRA
One illustrative example is here, showing a kind of unfriendly attitude (provisional term “arrogance”) towards citizens:
http://www.asktheeu.org/en/request/artic...
Thank you in advance for analyzing the possibility to grant access to my initial request.

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

Yours faithfully,

Mike Stabenow

Generalsekretariat der Europäischen Kommission

2 Attachments

Dear Mr Stabenow,

 

Please find herewith a note from our Director Ms Kneuer for your
information.

 

Best regards,

 

 

  [1]cid:image001.png@01CE1437.0F722A20

European Commission

DG OLAF

Unit C.4- Legal advice

 

 

 

References

Visible links

Mr. Tasos Ntetsikas hat eine Nachricht hinterlassen ()

The initial reply of OLAF has several problematic issues. Some of them are:

1. Contrary to its assertion, OLAF did not, apparently. undertake a concrete examination of individual documents. Instead it referred to four OLAF concrete investigations, but crucially did not gave not even a hint about how many documents it examined. In other cases that have led to litigation before the General Court, the Commission services informed applicants that hundreds of documents had to be 'assessed'. The whole tone of the OLAF reply is that it examined the documents en bloc, without considering the specific information in each document.

2. OLAF's apparent non-concrete examination is contrary to the case law of the EU Courts in so far it concerns documents (a) not seized pursuant to an on-the-spot audit and (b) interviews of officials subject to the Staff Regulation for whom the obligation of full collaboration is applicable. Only for documents of the kind (a) and (b) above OLAF can dispense with an individual examination of each document, under a general presumption that they cannot be disclosed.

3. OLAF is able to comply with article 4(1)(b) by redacting what is strictly necessary to preserve from the public the identity of data subjects. Therefore partial disclosure will solve the "issue".

4. The generalization of OLAF that disclosure of documents will compromise future investigations is nearly outrageous. Under this premise, OLAF will be able to refuse even partial access for decades to come. OLAF regularly releases partial copies of final case reports and other documents such as a Decision to open an Investigation pursuant to Regulation No 1049/2001. Without a statement of reasons regarding the four final case reports cited in OLAF's initial reply (i.e. the reasonably foreseeable risk of undermining the protected interest) the reliance of OLAF on article 4(2) third indent is just a pretext.

5. The arguments about professional secrecy (article 8 of Regulation No 1073/99) is correct in so far it concerns parts of a document indeed containing such information. Other parts of a document may not necessarily covered by that article.

6. The EU Courts have ruled on general presumptions about documents the Commission obtained in investigations for different than OLAF's kinds of investigations, namely staid aid, anti-competitive conduct and the associated leniency programme of DG COMP. The EU Courts have not ruled about OLAF's investigations. In fact. in the Francait & Byk case OLAF released a partial copy of a final case report to them. OLAF recently released a partial copy of the final case report about an Executive Agency in asktheeu.org. OLAF exploits that applicants - man on the street - are not well versed in the EU Courts case law, unlike lawyers representing big companies for matters DG COMP investigates. OLAF tries to "pull wool over citizens-applicants' eyes" by relying on case law that does not necessarily apply to its investigations.

7. Regarding the 6th recital of Regulation No 1049/2001 and the relevant case law, OLAF has most likely misread it, in so far the essence of the case law is that for legislative matters even more transparency is warranted. As a result, the protection afforded to legal opinions is overridden by the public interest of transparency and high scrutiny of legislative acts. That case law does not imply that OLAF's documents deserve any "special" treatment regarding the public's access, or that a 'weaker' regime of Regulation No 1049/2001 applies to non-legislative documents.

8. OLAF's thesis that any reference in an OLAF investigation is necessarily and indiscriminately detrimental to 'commercial interests' is nearly absurd. In certain cases, especially where OLAF has had suspicions for unlawful conduct, disclosure of the identity of legal persons will indeed prejudice their legitimate commercial interests. However, this does not apply to any reference whatsoever to a legal person, even a passing one, found to an OLAF document. In general, it can be argued that third parties to an OLAF investigation will not necessarily be 'harmed' if they are referred to in an OLAF investigation report. Only a concrete and individual examination of each document may enable an Institution to assess whether article 4(2) first indent is applicable.

9. OLAF has not essentially consider partial release of ALL the relevant documents at the single document level. It is obvious from the wording of OLAF's reply that OLAF considered a single report, not even all four of them (Four OLAF investigations were relevant).

10. In sum, OLAF has infringed several articles of Regulation No 1049/2001 in its total refusal to grant access, not even to a single paragraph in a document. Furthermore, the statement of reasons is defective, as it does not enable to ascertain (if a Court were to review it) the lawfulness of OLAF's initial decision.

Mike Stabenow hat eine Nachricht hinterlassen ()

Dear Mr. Tasos Ntetsikas,
Thank you very much for your annotation. That is very documented and useful. I will submit soon to OLAF a confirmatory application and, unless you oppose, I will use some of your observations and comments. Many thanks.

Mr. Tasos Ntetsikas hat eine Nachricht hinterlassen ()

Dear Sir,

Please feel free to use my comments about OLAF's initial reply as you see fit.

David Nicholson hat eine Nachricht hinterlassen ()

New Parliamentary questions http://www.europarl.europa.eu/sides/getD...

inserted below for a facile reading

“Question for written answer E-007475/2013 to the Commission
Rule 117

Ingeborg Gräßle (PPE) and Monica Luisa Macovei (PPE)
Subject: Conflict of interest - Danish Institute of Human Rights
1. The Danish Institute of Human Rights (DIHR) saw its funding cut by the Danish authorities after ‘irregularities’ had been found. The director in charge at the time the irregularities occurred is now working for an EU agency. The Danish authorities cancelled their support to the DIHR; the EU agency is still funding it.
(a) Has the Commission evaluated the financial transactions from this agency to the DIHR?
(b) Have irregularities been found?
(c) What action has been taken?
(d) Have funds been recovered? If so, what amount?
2. Management board members are leading staff of organisations that receive(d) grants or other financial support from the agency in question.
(a) How are these conflicts of interest managed?
(b) Have those members been involved in the process of granting funding to their organisations?
3. In the past there have been European Anti-Fraud Office (OLAF) cases involving agency staff in response to allegations that documents had been backdated, that staff had been mobbed and that the agency had not complied with existing rules on recruitment procedures.
(a) What was the result of these investigations?
(b) Could the Commission provide Parliament with the recommendations that OLAF issued?
(c) If there were no recommendations, could the Commission provide Parliament with a justification?
(d) What measures have been taken by the agency to prevent harassment, mobbing, etc.?
(e) Has any action been taken in response to incidents of harassment of staff members by other employees?
4. Are there any court cases pending against this agency? How many? What is the substance of these cases?
5. Who is bearing the costs of legal representation for staff of the agency before the courts? In which cases?
6. Could the Commission or the agency give details on the poem competition in 2010? How many people participated? How much money was spent?”

http://www.asktheeu.org/en/request/mep_m...

Dear Secretariat General (SG), Ms Kneuer,

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

I am writing to request an internal review of Secretariat General (SG)'s handling of my FOI request 'Lack of reply by OLAF to European Parliament (OLAF investigation following European Parliament request dated 27.04.2012)'.

1. Apparently there was not undertaken a concrete examination of individual documents. I request relevant information on the number of documents examined (title, subject, date, functions of signatories, number, title and type of annexes enclosed to each Report, other relevant information for each document examined)
2. I request a full substation as to the applicability of article 4(1)(b) and the reasons why those limits were not considered to be solved by granting partial disclosure.
3. I request details on how the disclosure of the documents listed in initial application will compromise future OLAF investigations. As this issue is sensitive and can create obstacles for citizens who will request access to OLAF documents, may I kindly ask you to provide grounds and a full substantiation. Same is true for invoking of article 4(2) third indent (grounds, detailed substantiation) .
4. Finally, based on the precedent created by OLAF by disclosing one of its Report to the public at large (OF/0488-EUMC Recruitments) I request application of the same approach for the documents listed in my initial Request, i.e. redacted / partial disclosure.
5. Please review arguments as to the professional secrecy (article 8 of Regulation No 1073/99) as there could be parts of the documents which are not necessarily covered by that article. Please provide detailed motivation in case of refusal.
6. As to the the 6th recital of Regulation No 1049/2001 and the relevant case law invoked: would it be possible to provide additional information on how the case invoked confers to OLAF special treatment regarding the public's access.
7. As to the argument ref. “commercial interests”: There are several precedents where the names of companies (bidders, contractors, grantees) were disclosed. This happened in case of European Commission, the competent authority of OLAF. See here several names of companies and individuals European Commission
Here http://www.asktheeu.org/en/request/702/r... are disclosed : Names of companies, names of directors, signatures, Name of Experts, lots of Name of Students working full time for European Commission for remarkable pay 8.851,56 EURO (when they have time to attend courses?), name of bank, Bank account, etc.
Here http://www.asktheeu.org/en/request/702/r... are disclosed : Declarations by individuals – partial disclosure (see pdf attachments)
As European Commission granted full access, without raising privacy aspects, OLAF should follow the same trend- approach.

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

Yours faithfully,

Mike Stabenow

Generalsekretariat der Europäischen Kommission

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Dear Mr. Stabenow,
 
Please be informed that your confirmatory request will be dealt with by
OLAF.
 
Yours faithfully,
 
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]
 
 
 

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Generalsekretariat der Europäischen Kommission

Dear Mr Stabenow,
 
We refer to your request for access to the documents dated 7.10.2013.
 
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.
 
Therefore, we have to extend the time limit with 15 working days in
accordance with Article 7(3) of Regulation (EC) N° 1049/2001 regarding
public access to documents.
 
We apologise for the delay and for any inconvenience this may cause.
 
Yours sincerely
 
 
 
 
 
Isabelle URBAN on behalf of Martin WASMEIER
European Commission
European Anti-Fraud Office (OLAF)
Directorate C
Unit C4

Office : J30 06/056
Rue Joseph II, 30 B-1049 Brussels (Belgium)
Phone: +32 22 95 02 97
E-mail: [1][email address]
[2]http://olaf.europa.eu

Our policy relating personal data protection can be
viewed on [3]http://ec.europa.eu/dgs/olaf/data/email....
P Pensez ENVIRONNEMENT: n'imprimer que si nécessaire
 
 
 

References

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1. mailto:[email address]
2. http://olaf.europa.eu/
3. http://ec.europa.eu/dgs/olaf/data/email....

Mike Stabenow hat eine Nachricht hinterlassen ()

on 29 October I received this text from OLAF:

"Dear Mr Stabenow,

We refer to your request for access to the documents dated 7.10.2013.

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.

Therefore, we have to extend the time limit with 15 working days in
accordance with Article 7(3) of Regulation (EC) N° 1049/2001 regarding
public access to documents.

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

Yours sincerely

Isabelle URBAN on behalf of Martin WASMEIER
European Commission
European Anti-Fraud Office (OLAF)
Directorate C
Unit C4"

Generalsekretariat der Europäischen Kommission

2 Attachments

Dear Mr Stabenow,

 

Please find herewith a note with annex from the Director-General Mr
Giovanni Kessler for your information.

 

 

Best regards,

 

 

  [1]cid:image001.png@01CE1437.0F722A20

European Commission

DG OLAF

Unit C.4- Legal advice

 

 

References

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Dear Secretariat General (SG),

In point 3.3.3. of OLAF letter http://www.asktheeu.org/en/request/622/r... it is stated :

"The information in the documents refers to OLAF investigations, possible mismanagement of EU funds and maladministration".

I seek clarification:

What happened with the part related to maladministration found by OLAF? It is noted that maladministration is not under OLAF competence, but under competence of Ombudsman. OLAF closed its investigation, forwarded some parts to European Commission for its consideration ("possible mismanagement of EU funds" ). But from this letter http://www.asktheeu.org/en/request/622/r... it is not clear if OLAF transmitted the relevant part about maladministration to Ombudsman.

Yours faithfully,

Mike Stabenow