OCM(2021)6864 - 04/03/2021
Directorate B - Revenue and International Operations - Mr Siem EIKELENBOOM
Investigations and Strategy
Van der Weijpad 22
3815 XR Amersfoort
Via e-mail only
Subject: Your application for public access to documents
Dear Mr Eikelenboom,
We refer to your e-mail of 22 January 2021, registered on 26 January 2021 under
reference number OCM(2021)2252.
With reference to Regulation 1049/2001, you requested public access to OLAF report of
mission to Malaysia dated 31/03/2015 and OLAF report of mission to Taiwan dated
21/04/2015. You put forward that in your opinion these reports can be made public
because the anti-dumping rules are no longer in force and the modus operandi of OLAF
was made public in the Dutch legal procedures.
OLAF interprets your request as an application for access to documents under Regulation
(EC) No 1049/2001 regarding public access to European Parliament, Council and
Based on the formulation of your application, we identified the following documents as
falling within the scope of your request: Mission report, registered on 31/03/2015 under
THOR(2015)13770.1. Preliminary remarks
OLAF wishes to clarify that it 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 883/2003 and Article 17 of the Staff Regulations.
However, 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
1 Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission
documents, OJ L145, 31.05.2001, page 43.
Rue Joseph II, 30 B-1049 Brussels (Belgium) Tel: +32 (0)2 299 11 11 Web: http://ec.europa.eu/anti_fraud
disclosed under this Regulation enter the public domain.2. Assessment of the documents under Regulation (EC) 1049/2001 – relevant
applicable exceptions – presumption of non-accessibility
Having carefully considered your request OLAF regrets to inform you that your application
cannot be granted, as disclosure is prevented by 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 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.
The General Court has recognised a general presumption of non-accessibility for
documents in OLAF case files2. It considers that 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.
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
gathered.3 In the case at hand, Regulation 883/20134, which governs OLAF's
administrative activity provides for the obligation of confidentiality with regard to all
information gathered during investigations.
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, so that the information they provide is used only for the
purposes of the investigation.
The protection of confidentiality extends to closed cases5. 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.
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 professional secrecy rules. Consequently,
the documents requested are 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 documents.6
2 Judgment of the General Court of 26 April 2016, Strack
, T-221/08, EU:T:2016:242, paragraph
3 See judgment Court of Justice of 28 June 2012, Agrofert Holding v Commission,
paragraph 50; 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.; judgment of the Court of Justice of 29 June 2010, Commission v
, C-28/08, EU:C:2010:378, paragraph 40 ff.
4 Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013
concerning investigations conducted by the European Anti-Fraud Office (OLAF), OJ L 248, 18.9.2013, page 1.
5 Judgment of the General Court of 26 April 2016, Strack
T-221/08, cited above, paragraphs 150
6 Ibid., paragraph 91.
3. Partial Access
OLAF has examined the possibility of granting partial access to the requested documents
in accordance with Article 4(6) of Regulation 1049/2001.
Partial access is not possible, given that the information the documents contain falls
entirely under general presumption of applicability of Article 4(2), third indent of
Regulation 1049/2001 in the context of inspections and audits.4. 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.
OLAF understands the importance of transparency of the functioning of the EU institutions
and particularly of the European Commission. However, given the nature of the anti-fraud
investigations conducted by OLAF, and the confidential nature of information collected,
such as sources of information, content of case files and reputation of natural persons,
OLAF considers there are no elements that would show the existence of an overriding
public interest in disclosing the requested documents.
In your application you do not substantiate why, in this specific situation, the principle of
transparency is in some sense especially pressing and capable, therefore, of prevailing
over the reasons justifying non-disclosure7.
You put forward that the anti-dumping rules at stake are no longer in force and that the
modus operandi of OLAF was made public in legal procedures in the Netherlands. In this
respect, it must be stated that the role of OLAF is to conduct administrative investigations
into irregularities to the detriment of the financial interests of the European Union. The
investigations in these cases have been closed by OLAF. In accordance with Article 11 of
Regulation 883/2013, the OLAF final reports have been transmitted to competent
authorities accompanied by recommendations indicating possible further action. OLAF has
not disclosed or made the requested documents accessible to the public.
Evidence gathered in the framework of OLAF investigations is transmitted on a strict
"need-to-know" basis to the national customs authorities of the Member States which are
concerned. According to Article 45(2) of Regulation (EC) No 515/97 on mutual assistance
between the administrative authorities of the Member States and cooperation between the
latter and the Commission to ensure the correct application of the law on customs and
agricultural matters8, this information may not be sent to persons other than those whose
functions require them to know or use it.
Given the preliminary nature of the anti-fraud investigations conducted by OLAF, OLAF
considers that the interest in maintaining the confidential nature of its case documents
prevails. Hence, the interests of the competent authorities which must be able to follow up
on OLAF's conclusions in a serene manner, as well as the interests of all the persons
involved in the investigation, including the sources of information, in preserving the
confidentiality of OLAF’s investigative documents are predominating. In particular, with
regard to the reputation of persons concerned, the Office is bound to uphold the
presumption of innocence, in accordance with the relevant legislation9.
In conclusion, OLAF considers that there are no sufficient elements that would show the
existence of an overriding public interest in disclosing the requested document. Therefore,
the application of the presumption invoked at section 2 above is justified and
7 Judgement of the Court of Justice of 2 October 2014, Strack v Commission
, C-127/13 P, EU:C:2014:2250,
8 OJ L 82, 22.3.1997, p. 1.
9 Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening
of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal
OJ L 65, 11.3.2016, p. 1–11.
consequently, the documents cannot be disclosed to you under Regulation 1049/2001.
In addition, the requested document also involves the protection of privacy and integrity
of individuals (Article 4(1)(b) of Regulation 1049/2001) where overriding public interest in
disclosure is not applicable.5. Confirmatory application
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting OLAF to review this position. Pursuant to Article 4 of
Commission Decision 2001/937/EC, ECSC, Euratom10, such a confirmatory application should
be addressed within 15 working days upon receipt of this letter to the Director General of
Any confirmatory application to OLAF should be sent to the following address:
Mr Ville ITÄLÄ
Your attention is drawn to the privacy statement below.
on 04/03/2021 at 18:11 by
Ernesto Bianchi [DIRECTOR]
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-
). You may contact the Data Protection Officer of OLAF (OLAF-FMB-
10 OJ L 345, 29/12/2001, p. 94–98, Special edition in Polish, Chapter 1, Volume 3, p. 408.
with regard to issues related to the processing of your personal data under Regulation (EU)
You have the right to have recourse to the European Data Protection Supervisor (email@example.com)
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