Annual Report CJEU 2012

The request was refused by Court of Justice of the European Union.

Dear European Court of Justice,

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:

All and any documents related to a mentioning in the Annual Report of Court of Justice 2012 at page 206 punkt 3 “Impartiality” http://curia.europa.eu/jcms/upload/docs/... in view of a comparison with FRA public reply given after delivery of Judgment, visible from here (the 2 specific exzerpts can be read below) http://www.asktheeu.org/en/request/eu_fu...

Exzerpt 1 - Annual Report of Court of Justice 2012
“3. Impartiality
The Tribunal annulled a decision rejecting a request for assistance in a case of psychological harassment on the ground of the lack of objective impartiality of the person who had conducted the inquiry underlying that decision. In its judgment of 18 September 2012 in Case F-58/10 Allgeier v FRA the Tribunal observed that the investigator was chairman of the board of an institute which had concluded an important contract with the defendant, a contract capable of being renewed repeatedly, and concluded that the importance of that business relationship was such as to give rise to justified concern on the part of the applicant that the investigator, because he wanted to maintain
that business relationship, would be guided by the aim of protecting the reputation of the Agency”.

Integral response from FRA, following a public request to access documents and information visible here http://www.asktheeu.org/en/request/eu_fu...

Below, the relevant Excerpt 2 from FRA public Response, for comparing the 2 contradictory replies (Tribunal and AsktheEU.org):

“With regards to your request dated 29 April, point three related to recital 61 of judgment F-58/10, please be informed that:  The contract was signed on the 4.11.2007 with the Danish Institute for Human Rights for an amount of 499,586 Euros.
http://fra.europa.eu/sites/default/files...
 The validity of the contract was of one year with no possibility of renewal.
http://fra.europa.eu/en/call-for-tender/...
As it is mentioned in the link above (including the contract and the tender file) the exact title of the tender is “Comparative study on the situation concerning homophobia and discrimination on grounds of sexual orientation in the EU”. The study was not limited
to Denmark but rather to the whole EU”.

Taking view to the links FRA provided in its public response (some links to contractual documents), it appears that the response given before the Court could be or is vitiated by inaccuracies. The two responses are essentially contradictory.

See the Active links to contractual documents in the original repsonse of FRA as the links in the quote above are not active.

I would like to request access to any documents, applicable rules, relevant case law – similar precedents, information on corrigenda of statement of FRA given to Court, or any other means which can clarify the two essentially different replies.

If the contract with IMR - DIHR was non-renewable as FRA replied publicly in asktheeu webiste and not a contract capable of being renewed repeatedly in the future as FRA stated to the Court, is the Judgement of 18 septemeber 2012 exposed to a corigenda of the facts ?

Yours faithfully,

Kurt Weiss

Kurt Weiss left an annotation ()

DEADLINE 28/08/2013

Dear European Court of Justice,

This is a reminder-
The response to my request has been delayed. By law the authority should have responded in 15 days (by August 28, 2013).

Yours faithfully,

Kurt Weiss

Dear European Court of Justice,

In relation to the pending reply from the court I would like to raise your attention to the new relevant documents disclosed by FRA under this link http://www.asktheeu.org/en/request/which... (see FRA reply dated 2 August 2013)
These documents (“FRA2 2007 3200 T05 Contract Amend.1.pdf” and “FRA2 2007 3200 T05 Service Contract.pdf” could support the court response and eventually the update of the paragraph on impartiality, inserted in Court` Annual report 2012 (see the initial request). Thank you.

Yours faithfully,

Kurt Weiss

Fretwell Christopher, Court of Justice of the European Union

Dear Mr Weiss,

In response to your request, may I first apologise for the delay in replying. Unfortunately I only received your request myself last week.

Before dealing with your request I would like to point out that Regulation 1049/2001 does not apply to the Court of Justice. The Court of Justice has its own decision, available on its website (http://curia.europa.eu/jcms/jcms/P_92908/) which regulates access to documents held by the Court in the exercise of its administrative functions.

This brings me to the first part of your request, that relating to documents concerning information about Case F-58/10.

The right of access to documents held by the Court, as provided for by Art.15(3) of the Treaty on the Functioning of the European Union, only applies to administrative documents. Your request, pertaining as it does to documents concerning a case before the Civil Service Tribunal, concerns, not administrative documents, but judicial documents and therefore does not fall under this provision.

As you are no doubt aware, the judgment in this case is available on the Court's website ( http://curia.europa.eu/juris/document/do...).

Under the terms of the Rules of Procedure of the Civil Service Tribunal, in particular Article 20(5):

"No third party, private or public, may have access to the case-file or to the
procedural documents without the express authorisation of the President, after the parties
have been heard. That authorisation may be granted only upon written request
accompanied by a detailed explanation of the third party's legitimate interest in inspecting
the file."

As a general rule therefore, no third party may have access to the case-file unless authorised by the President of the Civil Service Tribunal. That being so, I have forwarded your request to that Tribunal who will examine your request and take a decision in due course.

As regards your second request, as to the possibility for a "corrigendum" to be issued for a case, which is essentially a request for information rather than for access to a document, I would refer you to Article 119 of the Rules of Procedure of the Civil Service Tribunal which concerns the possibility for revision of the decisions of that Tribunal:

" Article 119
Revision
1. In accordance with Article 44 of the Statute, an application for revision of a
decision of the Tribunal may be made only on discovery of a fact which is of such a nature
as to be a decisive factor and which, before the decision was delivered or adopted, was
unknown to the Tribunal and to the party claiming the revision.

Without prejudice to the period of 10 years prescribed in the third paragraph of Article 44
of the Statute, an application for revision shall be made within three months of the date on
which the facts on which the application is based came to the applicant's knowledge.

2. Articles 34 and 35 shall apply to an application for revision. In addition such an
application shall:

(a) specify the decision contested;
(b) indicate the points on which the decision is contested;
(c) set out the facts on which the application is based;
(d) indicate the nature of the evidence to show that there are facts justifying revision,
and that the time-limits laid down in paragraph 1 of this article have been observed.

The application must be made against all the parties to the case in which the contested
decision was given.

The application for revision shall be assigned to the formation of the court which gave the
contested decision.

3. The Tribunal shall give its decision by way of judgment on the admissibility of the
application in the light of the parties' written observations.

If the Tribunal finds the application admissible, the remainder of the procedure shall be
oral, unless the Tribunal otherwise decides. It shall give its decision by way of judgment.
The original of the revising judgment shall be annexed to the original of the decision
revised. A note of the revising judgment shall be made in the margin of the original of the
decision revised.

4. Where an appeal before the General Court and an application for revision before the
Tribunal concern the same decision of the Tribunal, the Tribunal may, after hearing the
parties, stay the proceedings until the General Court has delivered its judgment."

As of this moment, no such application has been made in Case F-58/10.

I hope this helps.

Regards,

Christopher Fretwell
English Section
Press and Information Unit
Court of Justice of the European Union
Tel: +352 4303 3355
Follow us on Twitter: @EUCourtPress

 

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Dear Mr Fretwell,

Thank you for response. I understand that Request was submitted to Civil Service Tribunal. I will wait for their response. The quote from article 119 (on not known facts) is in fact not fully applicable because the respective facts were well known at least by one of the party - the agency, which signed the contract and an amendment. The FRA disclosed those contractual documents to the public domain through this website. The link is presented in one of my emails.
Probably Civil Service Tribunal has specific rules to deal with such situations. It looks like negligence or disinterest for the truth from the parties. When the parties read the Judgment of 18 September 2012 by Chamber 1, at least the agency should have been realized that the facts on renewable character of "IMR-DIHR contract" are presented wrongly in CST Judgment. I do not believe that there was an intention on keeping facts as they are, namely untrue, in a Judgment whose delivery took over two years (if there was an intention, the name for that is perjury, and perjury is applicable only to experts and witnesses). I think that maybe by negligence the agency`s people did not and still do not realize how important is the truth and that a Judgment should not be based in untrue facts.

If already available at CST the request for corrigenda from any of the two parties, please consider already my request to access it. Many thanks.

Yours sincerely,

Kurt Weiss

Fretwell Christopher, Court of Justice of the European Union

Dear Mr Weiss,

Yes indeed, your initial request has been forwarded to the Civil Service Tribunal who will treat it under Article 20(5) of their rules of procedure.

As to your last point, no request for review has been presented in this case yet so, obviously, it would not be possible for you to have access to it.

Kind regards,

Christopher Fretwell
English Section
Press and Information Unit
Court of Justice of the European Union
Tel: +352 4303 3355
Follow us on Twitter: @EUCourtPress

 

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Tfp Greffe, Court of Justice of the European Union

1 Attachment

Dear Sir,

 

please find enclosed our answer to your request of 07/08/2013.

 

Kind regards.

 

Registry of the European Union

Civil Service Tribunal

Tel.: 00352 4303 1

Fax: 00352 4303 4453

e-mail: [1][email address]

 

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