Dear Ms Kneuer,

Thank you for your reply dated 31.07.2013 available here http://www.asktheeu.org/en/request/622/r...

In OLAF`s letter it is stated 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 says 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`s letter of 27 April 2012 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 concluded in relation to EU Fundamental Rights Agency Vienna, Austria (FRA). Mr Theurer disclosed in his reply of 30.07.2013 the name of the Agency in question, i.e the FRA.

Thank you in advance.

Yours sincerely,

Mike Stabenow

Dear Director General of European Anti-Fraud Office (OLAF),

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.

Yours faithfully,

Mike Stabenow

Dear European Anti-Fraud Office (OLAF),

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

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)"'.

Following OLAF replies and clarifications please take into consideration my updated request:

My arguments in initial request and in confirmatory application are to be read as for accessing the Final Report of OLAF for the case which was pending when Letter of Mr Theurer was registered at OLAF.

As OLAF clarified in 14/08/2013 it is about a case with references OLAF/0753 / 2011 (supplemented in 2012 with Mr Theurer`s letter).

Case law presented in support of confirmatory application are to applied for accessing the report nr 0753, closed with no recommendations.

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

Dear European Anti-Fraud Office (OLAF),

Thank you very much for your letter. I would like to follow your recommendation and to this end I request additional clarifications on your point 3.3.2 (2). Would it be possible to specify how many OLAF selections procedure were ongoing at the date of your letter (11-10-2013) and which is the situation up to date (23-10-2013). To which audits you refer: OLAF`s or other bodies` and which are the reference numbers of the cases in question (selection procedures related to case ref OLAF/0753/2011). When OLAF estimates to have finalized those selections processes or procedures?

Yours faithfully,

Mike Stabenow