OCM(2019)30051 - 21/12/2019
The Director General
Aisha Down
Emerika Bluma 8,
Sarajevo, Bosnia and
Herzegovina
E-mail:
ask+request-7347-
xxxxxxxx@xxxxxxxx.xxx
Via e-mail and registered mail
Brussels
Subject:
Your confirmatory application for public access to documents
Case No OF/2011/1181 (Please include this number in all correspondence)
Dear Mrs Down,
We refer to your email dated 20 November 2019, by which you make a confirmatory
application for public access to documents in relation to OLAF’s reply to your initial
request for public access to documents of 19 November 2019 (OCM(2019)26256).
1. Your confirmatory application
On 2 October 2019, you submitted an initial application for public access to documents
under Regulation (EC) No 1049/20011, in which you requested public access to the
following documents:
“
All documents and correspondence related to OLAF's investigation of links between
Japan Tobacco International (JTI), JTI's Middle Eastern distributor IBCS Trading, Syria
Duty Free Shops (SDF) Ltd, and Rami Makhlouf.
Documents showing when OLAF was first aware of the link between Assad and JTI.
Documentation of the launch of OLAF's investigation of the links between Makhlouf,
SDF Ltd, and JTI.
All information and documents given by Cypriot authorities to OLAF regarding JTI's
links to Makhlouf, SDF Ltd, and Assad. All correspondence between Cypriot
authorities and OLAF on this subject. All meetings between Cypriot authorities and
OLAF on this subject.
All meetings between OLAF and JTI on the subject of the investigation of links
between JTI, IBCS Trading, Syria Duty Free Shops Ltd, and Rami Makhlouf. All
negotiations related to this investigation”.
By letter of 19 November 2019, OLAF identified your application as a request for access to
1Regulation (EC) No 1049/2001regarding public access to European Parliament, Council and Commission
documents OJ L145, 31.05.2001, page 43.
OLAF Rue Joseph II, 30 B-1049 Brussels (Belgium) Tel: +32 (0)2 299 11 11 Web: http://ec.europa.eu/anti_fraud
OCM(2019)30051 - 21/12/2019
documents of OLAF's investigation file OF/2011/1181 and refused public access to them.
OLAF explained that the documents are covered by a general presumption of non-disclosure
recognised by the constant case-law2, according to which the disclosure to the public under
Regulation 1049/2001 of documents related to OLAF investigations could fundamentally
undermine the objectives of the investigative activities, as well as the decision making
process, both now and in the future.
In your confirmatory application, you reiterate your request for full/partial access to the
same documents as requested in your initial application. In addition, you have suggested the
following arguments of your request:
"I would like you to review this refusal, for the following reason: I believe there is an
overriding public interest in disclosure. Investigations have demonstrated that tobacco
majors bribe authorities and exploit war zones to sell their products.
https://urldefense.com/v3/__https://www.bbc.com/news/business-
40787784__;!NW73rmyV52c!VAMCtetseTbJNdThHs4dwhaFgLZVsBcAPvkLcKRKFmACxVH
53ifLTOGqSP6Oo-gthnvGsnx-$
https://urldefense.com/v3/__https://seatca.org/revealed-how-british-american-tobacco-
exploited-war-zones-to-sell-
cigarettes/__;!NW73rmyV52c!VAMCtetseTbJNdThHs4dwhaFgLZVsBcAPvkLcKRKFmACxVH
53ifLTOGqSP6Oo-gtho-kE6LQ$
Such was the suspicion in Syria:
https://urldefense.com/v3/__https://www.wsj.com/articles/SB100008723963904442331
04577595221203321922__;!NW73rmyV52c!VAMCtetseTbJNdThHs4dwhaFgLZVsBcAPvkL
cKRKFmACxVH53ifLTOGqSP6Oo-gthnQUgpqQ$
This behavior is deeply immoral and costs lives. The public has a right to understand
what is being done about it by law enforcement authorities they trust. This investigation
is over five years old. Surely, at this point, public understanding and corporate
accountability are a greater concern than future audits on a closed case.
If the refusal stands, then please provide information on the future inspections or audits
that necessitate this information being kept secret.
A full history of my request and all correspondence is available on the Internet at this
address:
https://urldefense.com/v3/__https://www.asktheeu.org/en/request/documents_related_
to_jti_and_syr__;!NW73rmyV52c!VAMCtetseTbJNdThHs4dwhaFgLZVsBcAPvkLcKRKFmAC
xVH53ifLTOGqSP6Oo-gthkBwMMsa$ “
2. Preliminary remarks
OLAF has firstly to reiterate that the Office is legally bound to treat all information it obtains
during its investigations as confidential and subject to professional secrecy, in particular
pursuant to Article 339 of the Treaty on the functioning of the European Union, Article 10 of
Regulation (EU, Euratom) No 883/2013 and Article 17 of the Staff Regulations.
Notwithstanding the foregoing, the purpose of Regulation 1049/2001 is to give access to
documents to the public at large. Any document disclosed to an individual under this
Regulation then becomes automatically available to any other member of the public
whenever there is a subsequent request. Consequently, attention is drawn to you to the fact
that documents requested and subsequently disclosed under this Regulation are to be
considered publicly available.
2 Judgment of the General Court of 26 April 2016,
Strack v
Commission, T-221/08, EU:T:2016:242, paragraphs
150 to 164.
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3. Assessment of the documents under Regulation (EC) 1049/2001 - relevant
applicable exceptions – presumption of non-accessibility
Having carefully considered your application, OLAF regrets to inform you that your
application cannot be granted, as disclosure is prevented by the exceptions to the right of
access laid down in Article 4 of Regulation (EC) 1049/2001 based on the following
considerations.
The requested documents are part of OLAF's investigation file OF/2011/1181. You were
also informed that OLAF has closed the investigation in 2015 with a note to Japan Tobacco
International (JTI).
According to the case law of the Court, the administrative activity of the Commission does
not require the same extent of access to documents as required by the legislative activity
of a Union institution3.
The requested document is covered by the exceptions under Article 4(2), third indent of
Regulation 1049/2001 which stipulates that the institutions shall refuse access to a
document where disclosure would undermine the protection of the purpose of inspections,
investigations and audits, as well as the protection of the decision-making process as
referred to Article 4(3) second sentence of the Regulation, unless there is an overriding
public interest in disclosure, as well as in Article 4(1)(b) which prescribes that access shall
be refused where disclosure would undermine the protection of privacy and the integrity
of the individual, in particular in accordance with Union legislation regarding the protection
of personal data.
The General Court recognised in its case-law4 a general presumption of non-accessibility
for documents in OLAF case files. It considers that the disclosure to the public under
Regulation 1049/2001 of documents related to OLAF internal investigations could
fundamentally undermine the objectives of the investigative activities, as well as the
decision making process, both now and in the future.
The presumption is based on the consideration that, to determine the scope of Regulation
1049/2001, account must be taken of relevant sectoral rules governing the administrative
procedure under which the documents requested under Regulation 1049/2001 were
gathered5, in the case at hand, Regulation 883/2013, which governs OLAF's administrative
activity provides for the obligation of confidentiality with regard to all information
gathered during investigations.
OLAF is legally bound, pursuant to Article 339 of the Treaty on the Functioning of the
European Union, Article 10 of Regulation (EU, Euratom) No 883/2013, and Article 17 of
the Staff Regulations, to treat the information it obtains during an investigation as
confidential and subject to professional secrecy.
Moreover, the following provisions of Regulation 883/2013 regulate and restrict the use of
information in OLAF investigation files, before, during and after an OLAF investigation:
Article 4 (internal investigations), 5 (opening of investigations), 6 (access to information
in database prior to the opening of an investigation), 7 (investigations procedure), 8 (Duty
to inform OLAF), 9 (procedural guarantees), Article 10 (confidentiality and data
protection); 11 (investigation report and action to be taken following investigations), 12
(Exchange of information between OLAF and the competent authorities of Member
States), 13 (cooperation between OLAF and Eurojust and Europol), 14 (cooperation with
third countries and international organisations), 15 (Supervisory Committee) and 16
3 Judgement of the Court of 27 February 2014,
Commission v
EnBW, C-365/12 P, EU:C:2014:112, paragraph 91.
4 Judgment of the General Court of 26 April 2016,
Strack v
Commission, T-221/08, EU:T:2016:242, paragraph
162.
5 Judgment Court of Justice of 28 June 2012,
Agrofert Holding v
Commission, C-477/10 P,
EU:C:2012:394,
paragraphs 50-59; judgment of the Court of Justice of 29 June 2010,
Commission v
Technische Glaswerke
Ilmenau, C-139/07 P, EU:C:2010:376, paragraph 55 ff..
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(exchange of views with the institutions), 17 (Director-General).
In view of that regulatory context, the Court held that allowing public access to OLAF
investigation documents would be particularly detrimental to OLAF’s ability to fulfil its
mission of fight against fraud in the public interest. The document requested is a part of
the OLAF files and directly relates to the investigation activities aiming at gathering
evidence and verifying allegations. The disclosure of the document concerned would
seriously affect the decision-making process of OLAF, as it would seriously jeopardize the
full independence of future OLAF investigations and their objectives by revealing OLAF’s
strategy and working methods. It could also discourage individuals to send information
concerning possible fraud thus depriving OLAF of useful information to initiate
investigations aiming at protecting the financial interests of the Union. They must be
reassured that their statements will be kept confidential otherwise, they might be inclined
to censor the information they give or to hold back sensitive information.6
The specific confidentiality rules regarding the documents related to OLAF investigations
are justified not only in so far as OLAF collects, as part of such an investigation, sensitive
business secrets and highly sensitive information on individuals whose disclosure could
significantly harm their reputation, but also to the extent that the access to documents
relating to an investigation by OLAF, even after the conclusion of the investigation in
question might, as explained above, seriously hamper the work of OLAF, disclose the
methodology and strategy, harm the availability of those involved in the procedure to
collaborate in the future and, therefore prejudice the proper functioning of the
investigations in question and the achievement of their objectives.
The protection of confidentiality of information in the legal framework applicable to OLAF
investigations aims, on the one hand, at safeguarding the successful conduct of an
investigation in the public interest and, on the other hand, at safeguarding the legitimate
interests of the individuals (
e.g. persons concerned, witnesses, informants), so that the
information they provide is used only for the purposes of the investigation.
The protection of confidentiality extends to closed cases7. In addition, having regard to the
nature of the information processed in the context of OLAF investigations, the publication
of the sensitive information contained in the OLAF case file is likely to harm the protection
of personal data regardless of whether an investigation is pending or closed. The prospect
of such publication after an investigation is closed runs the risk of adversely affecting the
willingness of informants and of those who hold relevant information to cooperate with
OLAF when such a procedure is pending, and that could seriously compromise the
effectiveness of OLAF’s investigative activities.
The documents contain the name(s) of individual(s) and information which refers to the
identification of the(se) person(s). This information cannot be released to the public at
large on the basis of Article 4(1)(b) of Regulation (EC) No 1049/2001 which provides that
‘[t]he institutions shall refuse access to a document where disclosure would undermine
the protection of […] privacy and the integrity of the individual, in particular in accordance
with Community legislation regarding the protection of personal data’. In its judgment in
Case C-28/08 P
(Bavarian Lager)8, the Court of Justice ruled that when a request is made
for access to documents containing personal data, Regulation (EC) No 45/2001 (now
replaced by, Regulation (EU) 2018/1725) becomes fully applicable.
Pursuant to Article 9(1)(b) of Regulation (EU) 2018/1725, ‘personal data shall only be
transmitted to recipients established in the Union other than Union institutions and bodies
if ‘[t]he recipient establishes that it is necessary to have the data transmitted for a specific
purpose in the public interest and the controller, where there is any reason to assume that
6 See judgement in
Agrofert Holding v
Commission, cited above EU:C:2012:394, paragraph 66.
7 Judgment of the General Court of 26 April 2016,
Strack v
Commission, T-221/08, EU:T:2016:242, paragraphs
150 to 164.
8Judgment of the Court of Justice of 29 June 2010, European Commission v The Bavarian Lager Co. Ltd,
C-28/08 P, EU:C:2010:378, paragraph 59.
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the data subject’s legitimate interests might be prejudiced, establishes that it is
proportionate to transmit the personal data for that specific purpose after having
demonstrably weighed the various competing interests’.
In your confirmatory application, you do not put forward any arguments to establish the
necessity to have the data transmitted for a specific purpose in the public interest. You
rather refer to the overriding public interest in disclosure. Therefore, OLAF does not have
to examine whether there is a reason to assume that the data subjects’ legitimate
interests might be prejudiced.
Notwithstanding the above, there are reasons to assume that the legitimate interests of
the data subjects concerned would be prejudiced by the disclosure of the personal data
reflected in the documents, as there is a real and non-hypothetical risk that such public
disclosure would harm their privacy and subject them to unsolicited external contacts. In
view of the foregoing, the documents in OLAF's investigation files fall under the
presumption of non-accessibility as documents containing information collected during an
OLAF investigation and subject to confidentiality and professional secrecy rules.
Consequently, the documents requested is exempt, in principle and in full, from disclosure
to the public unless the applicant demonstrates that the presumption is not applicable
because an overriding public interest justifies the disclosure of the requested document.9
4. Partial Access
As regards partial access, it should be recalled that the general presumption referred to
above indicates that the documents covered by them do not fall within an obligation of
disclosure, in full or in part, of their content.10 There is therefore no need for OLAF to
examine the possibility of granting partial access to the requested documents in
accordance with Article 4(6) of Regulation (EC) No 1049/2001.
In any event, partial access is not possible, given that the information the document
contains falls entirely under the general presumption of applicability of Article 4(2), third
indent (in the context of inspections and audits) and of Article 4(3) second sentence (in
the context of decision making) of Regulation 1049/2001.
5. Overriding public interest in disclosure
The exceptions laid down in Article 4(2) and 4(3) of Regulation 1049/2001 apply unless
there is an overriding public interest in disclosure of the documents. For such an interest
to exist it, firstly, has to be a public interest and, secondly, it has to outweigh the interest
protected by the exception to the right of access. However, it is for the applicant to show
that there is an overriding public interest in disclosure11.
In addition, general considerations such as the principle of transparency and its
importance cannot provide an appropriate basis for establishing that the principle of
transparency is in some sense especially pressing and capable, therefore, of prevailing
over the reasons justifying the refusal to disclose the documents in question12. Moreover,
the public interest in accessing a document based on the principle of transparency is not
as relevant for an administrative document (such as documents related to a specific
investigation) as for a document where the EU institution acts as legislator.
In your confirmatory application you put forward the existence of an overriding public
interest in disclosure based on the considerations (two media publication referred) that
9 Ibid., paragraph 91.
10 Case C-404/10 P,
Commission v
Odile Jacob, EU:C:2012:393, paragraph 133.
11 Judgement of the Court of 2 October 2014,
Strack v
Commission, C-127/13 P, EU:C:2014:2250, paragraph
128, with further reference, and paragraphs 129 and 131; judgment of the General Court of 15 September 2016,
Herbert Smith Freehills v
Council, T-755/14, EU:T:2016:482, paragraph 74, with further references; see also the
references quoted in judgment of the General Court of 13 November 2015,
ClientEarth v
Commission, Joined
Cases T-424/14 and T-425/14, EU:T:2015:848, paragraph 137.
12 Strack v Commission, mentioned above, paragraph 164.
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there were investigations of the Serious Fraud Office (SFR) into British American Tobacco
(BAT) which has promoted sales of its cigarettes in fragile and unstable countries of Africa
and the Middle East. However, both publications do not relate to the matters under
consideration, they rather refer to the investigation of the national authorities into another
tobacco firm.
The third reference refers to the publication about the EU investigation - whether EU
Syrian sanctions were violated by the sale of cigarettes by Japan Tobacco International
(JTI) to Syrian companies.
Following this, you stated that such “
behaviour is deeply immoral and costs lives. The
public has a right to understand what is being done about it by law enforcement
authorities they trust.” In this regard, OLAF understands that you are referring to the
situation in Syria (not the facts under OLAF investigation), as well as the general principle
of transparency of EU institutions.
While these aspects of the situation in Syria are certainly dramatic, I would like to
underline that OLAF's investigation was not focussed on them, and information touching
on this matter is not (even marginally) referred to in the documents of the investigation.
As regard the business practices of the tobacco producers, OLAF fully recognises the
importance of such investigations and the resulting considerable interest of the public to
be informed. Nevertheless, the assessment under Regulation 1049/2001 has to be based
on clear criteria for determining, first, the public interest in disclosure and second, for
balancing it against other interests at stake. In this respect, OLAF reiterates that its
reports are not decisions based on a full procedure but investigation reports that are
aimed at assisting competent authorities in taking further action, based on their
procedural framework. It is for the competent authorities to adopt decisions concluding
that there was wrong-doing such as fraud, corruption or irregularities on the part of the
persons involved (or not).
In that regard, OLAF wishes to reiterate that public disclosure of OLAF's investigation
documents report might create serious misconceptions on the part of the public. Apart from
causing harm to OLAF's investigative function; it could also undermine the protection of
legitimate interests of persons concerned, witnesses and staff of the Office. Even the removal
of personal data from the document could not prevent possible misrepresentations,
specifically about the persons concerned, in particular when the identity of persons can be
derived from the context or information that is already known.
Against this background, OLAF considers that the confidentiality of its investigations, as
provided for in Regulation 883/2013, protects the fundamental rights of the persons under
investigation. In other words, the public interest in disclosure must be balanced against
fundamental principles of the EU legal order, such as the presumption of innocence.
On the basis of the above-mentioned arguments, while OLAF understands the importance
of transparency of the functioning of the EU institutions, it considers that, given the
nature of its anti-fraud investigations, and the confidential nature of information collected,
that existence of an overriding public interest in disclosing the requested document has
not been demonstrated. The arguments that you raise cannot provide an appropriate
basis for establishing that, in the present case, the principle of transparency is of
especially pressing concern and could thus prevail over the reasons justifying that the
confidentiality of the documents be maintained. Nor have I, based on the information at
my disposal, been able to identify any element capable of demonstrating the existence of
an overriding public interest.
In addition, the requested documents to a great extent involves the protection of privacy
and integrity of individuals (Article 4(1)(b) of Regulation (EC) No 1049/2001) where
overriding public interest in disclosure is not applicable.
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6. Means of redress
I draw your attention to the possible means of redress available against this decision. You
may either bring proceedings before the Court of Justice of the European Union or file a
complaint with the European Ombudsman under the conditions specified respectively in
Articles 263 and 228 of the Treaty on the Functioning of the European Union.
Your attention is drawn to the privacy statement below.
Yours sincerely,
Signed Electronically
on 21/12/2019 at 19:35 by HOFMANN Margarete [DIRECTOR] by
delegation from ITALA Ville [DIRECTOR GENERAL]
Privacy notice
Pursuant to Articles 15 and 16 of Regulation (EU) 2018/1725 on the protection of natural persons with regard to
the processing of personal data by Union Institutions, bodies, offices and agencies and of the free movement of
such data, please be informed that your personal data are stored in OLAF’s electronic and paper files concerning
this matter for the purposes of ensuring conformity with the requirements of Regulation 1049/2001 and
Commission Decision 2001/937/EC.
The categories of your personal data being processed are identification and contact data and any other personal
data provided by or to you in relation to your request. Officials within OLAF and other Commission services
responsible for dealing with requests for access to documents, and third parties, within the meaning of Articles
4(4) and 3(b) of Regulation 1049/2001, and Article 5 of Commission Decision 2001/937/EC, have access to your
personal data. Personal data that appear on the requested document may only be disclosed to the applicant
following an assessment under Article 9(b) of Regulation (EU) 2018/1725. There is no automated decision
process by OLAF concerning any data subject.
All documentation concerning OLAF investigations are stored in the relevant OLAF investigation files and are
retained for a maximum of 15 years. Thus personal data contained in requests for public access to documents
concerning OLAF investigations are retained for a maximum of 15 years.
You have the right to request access to your personal data, rectification or erasure of the data, or restriction of
their processing. Any request to exercise one of those rights should be directed to the Controller
(OLAF-FMB-
xxxxxxxxxxxxxxx@xx.xxxxxx.xx). You may contact the Data Protection Officer of OLAF
(OLAF-FMB-
xxx@xx.xxxxxx.xx) with regard to issues related to the processing of your personal data under Regulation (EU)
2018/1725.
You have the right to have recourse to the European Data Protection Supervisor
(xxxx@xxxx.xxxxxx.xx) if you
consider that your rights under Regulation (EU) 2018/1725 have been infringed as a result of the processing of
your personal data by OLAF.
The complete privacy statements for this and all other OLAF personal data processing operations are available at
http://ec.europa.eu/anti_fraud.
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