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Unjustified spending - studies for construction of three locks in Belgium

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Dear European Court of Auditors,

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:

Unjustified award of EU subsidies to contractors for studies on the construction for three locks on the Upper-Scheldt in Belgium.

Kind regards,

Bart Haeck

Der Europäische Rechnungshof

Dear Mr Haeck,

We hereby acknowledge the receipt of your request for documents related to
"Unjustified award of EU subsidies to contractors for studies on the
construction for three locks on the Upper-Scheldt in Belgium", which you
submitted to the ECA by email of 16 December 2014.  

Under the terms of Court of Auditors Decision No 12-2005 as amended by
decision 14/2009, regarding public access to Court documents, you will
receive a reply within 15 working days, that is by the end of business on
16 January 2015.

Kindest regards,
Damijan FIŠER
ECA INFO

From:        Bart Haeck <[FOI #1664 email]>
To:        information requests at European Court of Auditors
<[European Court of Auditors request email]>
Date:        16/12/2014 16:10
Subject:        access to information request - Unjustified spending -
studies for construction of three locks in Belgium

--------------------------------------------------------------------------

Dear European Court of Auditors,

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:

Unjustified award of EU subsidies to contractors for studies on the
construction for three locks on the Upper-Scheldt in Belgium.

Kind regards,

Bart Haeck

-------------------------------------------------------------------

This is a request for access to information under Article 15 of the TFEU
and, where applicable, Regulation 1049/2001 which has been sent via the
AsktheEU.org website.

Please kindly use this email address for all replies to this request:
[FOI #1664 email]

If [European Court of Auditors request email] is the wrong address for information requests to
European Court of Auditors, please tell the AsktheEU.org team on email
[email address]

This message and all replies from European Court of Auditors will be
published on the AsktheEU.org website. For more information see our
dedicated page for EU public officials at
[1]http://www.asktheeu.org/en/help/officers

-------------------------------------------------------------------

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References

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Der Europäische Rechnungshof

Dear Mr Haeck,

As far as your application for access to documents concerns preliminary
audit observations, we regret to inform you that our audit observations,
including our communication with the Commission and other auditees, fall
under the exceptions laid down in Article 4, paragraph 2 and the third
indent of paragraph 3 of the [1]Court of Auditor’s Decision No 12/2005.
Article 4, paragraph 2 of that Decision states, with reference to the
Financial Regulation applicable to the general budget of the European
Communities ([2]Regulation No 966/2012), that the Court shall refuse
access to its audit observations and may also refuse access to documents
used in the preparation of those observations.

In fact, Article 162, paragraph 2, of the Financial Regulation provides
that the Court’s audit observations “must remain confidential”. The reason
for this is not only that the Court’s audit findings contain very detailed
data about the natural and legal persons receiving grants from the EU
budget, but also that the findings made at that stage are preliminary and
may be changed after further verification and clarification. Disclosing
them to the public would give the impression that the Court has actually
established the existence of certain errors or irregularities, although
the findings may have been modified or even withdrawn at a later stage.
Therefore, only the final observations of the Court, as described in its
reports, are made public. In reply to your query, we draw your attention
on the following extracts of the [3]Annual Reports for the Financial Year
2013 (published on the Court’s website), which summarize problems relating
to EU contributions in the area of spending you are interested in:

5.60. In 2013, as in previous years, the Court found several errors in
relation to non-compliance with EU and national public procurement rules
for the TEN-T and the EEPR projects examined (see Annex 5.1). However, as
in previous years, no reservation in this respect has been issued by the
Directorate-General for Mobility and Transport for the TEN-T programme.
The Court also considers that the Directorate-General for Energy should
not have lifted its reservation, issued for the first time in 2012 for
EEPR, in relation to public procurement.
Box 5.1 — Examples of serious failures to comply with public procurement
rules
Box 5.1 — Examples of serious failures to comply with public procurement
rules
(a) Unjustified direct award of additional works (absence of unforeseen
circumstances): In a TEN-T project in Germany, contracts for additional
construction works for an airport passenger terminal (which had been
directly awarded to the same contractor) were declared for cofinancing.
These additional works were due to deficiencies in project preparation,
planning and implementation rather than to unforeseeable circumstances. In
such cases the direct award is unlawful and the additional works should
have been put out to tender. Similar cases were found in other ERDF/CF and
transport projects in Belgium, Czech Republic, Germany, Spain, Italy, and
Sweden.

In this context, it must also be observed that the audit findings you
would like to have access to contain very specific and detailed
information about the projects and the entities involved. According to the
Case law of the Court of Justice (see the judgment in case C-315/99 P
Ismeri v Court of Auditors), the Court of Auditors is not allowed, as a
general rule, to identify in its reports individual persons/companies. It
may only publish information relating to individual persons and projects
under very specific circumstances and after having given the persons
concerned the right to a hearing. If the Court of Auditors were to
disclose its audit observations relating to specific projects, thus
allowing to identify the persons and companies involved, the principles
set out by the Court of Justice would be circumvented.

Having examined the audit findings to which you refer, we consider that
even partial access to those documents (Article 4, paragraph 6 of Decision
No 12/2005) would not be a reasonable option in the present case. If all
the specific information which may allow identifying the entities
concerned and the observations subject to the exceptions referred to above
were deleted from the documents, there would be virtually no useful
information left. Furthermore, as the results or the Court’s audits are
published in its reports, we consider that there is no overriding public
interest, which would, in accordance with Article 4, paragraph 8 of
Decision No 12/2005, allow the disclosure of the audit test results and
related communications falling under the exceptions mentioned above.

According to Article 7 of the same Decision, you may, within 15 working
days of receiving this reply, ask the Court to reconsider its position.

Kindest regards,
Damijan FIŠER
ECA INFO

From:        ECA-INFO/Eca
To:        Bart Haeck <[FOI #1664 email]>
Cc:        information requests at European Court of Auditors
<[European Court of Auditors request email]>
Date:        18/12/2014 12:54
Subject:        Re: access to information request - Unjustified spending -
studies for construction of three locks in Belgium
Sent by:        Damijan FISER

--------------------------------------------------------------------------

Dear Mr Haeck,

We hereby acknowledge the receipt of your request for documents related to
"Unjustified award of EU subsidies to contractors for studies on the
construction for three locks on the Upper-Scheldt in Belgium", which you
submitted to the ECA by email of 16 December 2014.  

Under the terms of Court of Auditors Decision No 12-2005 as amended by
decision 14/2009, regarding public access to Court documents, you will
receive a reply within 15 working days, that is by the end of business on
16 January 2015.

Kindest regards,
Damijan FIŠER
ECA INFO

From:        Bart Haeck <[FOI #1664 email]>
To:        information requests at European Court of Auditors
<[European Court of Auditors request email]>
Date:        16/12/2014 16:10
Subject:        access to information request - Unjustified spending -
studies for construction of three locks in Belgium

--------------------------------------------------------------------------

Dear European Court of Auditors,

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:

Unjustified award of EU subsidies to contractors for studies on the
construction for three locks on the Upper-Scheldt in Belgium.

Kind regards,

Bart Haeck

-------------------------------------------------------------------

This is a request for access to information under Article 15 of the TFEU
and, where applicable, Regulation 1049/2001 which has been sent via the
AsktheEU.org website.

Please kindly use this email address for all replies to this request:
[FOI #1664 email]

If [European Court of Auditors request email] is the wrong address for information requests to
European Court of Auditors, please tell the AsktheEU.org team on email
[email address]

This message and all replies from European Court of Auditors will be
published on the AsktheEU.org website. For more information see our
dedicated page for EU public officials at
[4]http://www.asktheeu.org/en/help/officers

-------------------------------------------------------------------

**********************
Disclaimer: If you have received this message in error, please contact the
sender immediately.

**********************
Avertissement : Si ce message vous a été adressé par erreur, nous vous
prions de vous mettre immédiatement en rapport avec l’expéditeur.

References

Visible links
1. http://www.eca.europa.eu/Lists/ECADocume...
2. http://eur-lex.europa.eu/LexUriServ/LexU...
3. http://www.eca.europa.eu/Lists/ECADocume...
4. http://www.asktheeu.org/en/help/officers

Wir sind nicht sicher, ob die letzte Antwort auf diese Anfrage Informationen enthält – »falls Sie Bart Haeck sind, bitte melden Sich an und lassen es uns wissen.