DG CNET: Anti-fraud policy, Internal Audit Manual, Bi-annual Management Reports to Commissioner, overriding public interest

Mr. Tasos Ntetsikas made this access to documents request to Communications Networks, Content and Technology

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The request was partially successful.

Mr. Tasos Ntetsikas

Dear Communications Networks, Content and Technology (CNECT),

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:

1. The documents describing the DG CNET Anti-fraud Strategy, Policy, and Operational Organisation, from 1/1/2010 onwards.

2. All difference versions of the DG CNET (or former DG INFSO) Internal Audit Manuals, from 1/1/2007 onwards

3. The Bi-annual Management Reports from the Director-General to the respective Member of the Commission from 1/1/2007 onwards.

The following paragraphs provide remarks on the exceptions of article 4 of Regulation No 45/2001 and argue for the fill release of the documents.

A. Anti-fraud Strategy, Policy, and Operational Organisation

A.1. DG CNET has been concluding contractual agreements with FP7 beneficiaries and FP6 contractors). The Anti-Fraud Strategy, Policy and Operational Organisation are themselves largely based on the DG CNET external financial audits, that is to say private law contractual provisions. It is therefore impossible that such matters pertain to the 'financial, monetary and economic' policy of the Union.

A.2. DG CNET has not been pursuing 'commercial' interests in FP6 & FP7. Therefore article 4(2) first indent is not applicable.

A.3. Article 4(2) third indent protects individual 'inspections, investigations and audits' and not how these activities are organised in a general-purpose fashion. OLAF has been publishing Manuals of Operations which were over 200 pages long with their annexes. It means that Anti-Fraud policies and operational measures are subject to full publicity. Furthermore and crucially, the DG CNET external financial audits are not audits in exercise of public authority. Consequently, the protection afforded to audits within the meaning of this provision does not apply to the DG CNET contractual financial audits.

A.4. Article 4(3) is not applicable, as DG CNET has adopted a final position. That the underlying matters are evolving, as everything in life, does not mean that their evolution, with the associated need for future alterations, will justify reliance on that article to refuse access.

A.5. There is an overriding public interest for their full release. This is explained in the next few lines. DPO-3338.1 was filed as late as 2/2/2011, that is to say when DG INFSO had conducted over 500 audits, with approximately 400 conducted by external auditors. Yet, DPO-3338.1 states '3. Sub-Contractors —', which can only mean that DG INFSO had neither used nor it was intending to rely on subcontractors. Of course, the 'declaration' '3. Sub-Contractors —' is a gross inaccuracy, to say the least. In turn, all this means that an essential procedural step of Regulation No 45/2001 was not complied with, in conjunction with gross 'inaccuracies' and in spite of the stipulations of article 49 of Regulation No 45/2001. This reasoning begs the question how exactly the DG CNET Anti-fraud Strategy, Policy and Operational Organisation has been compliant with Regulation No 45/2001. The serious doubts as to the lawfulness of the DG CNET conduct warrants the full release of the documents.

B. CNET Internal Audit Manual

In my opinion, none of the exceptions may be relied upon to refuse total access. If necessary, in the confirmatory application the matter will be elaborated.

C. Bi-annual Management Reports

As outlined in A.5 above, there are serous doubts about the compliance of the CNET external financial audits with Regulation No 45/2001. Similar doubts exist for the compliance of the DG CNET external auditors with the national personal data protection, which is expanded below.

The publicly available prior notification of a DG CNET external auditor (at the national Data Protection Authority website) lists only statutory audits and not contractual audits such as those of FP6.II.29 and FP7.II.22. Furthermore, the personal data fields of section 10 of DPO-3338.1 are not listed at all in the prior notification filed with that Authority even for the statutory audit. The DG CNET external auditor has manifestly failed to comply with the national legislation for every single external financial audit it conducted. This non-compliance with national law took place at the instigation, directions and instructions of DG CNET.

Consequently, the extremely serious doubts about the non-compliance of the DG CNET external financial audits with both Regulation No 45/2001 and the national legislation on personal data protection raises the political question as to whether the Member of the Commission overseeing DG INFSO and DG CNET was either informed or kept completely in the dark. In the former case there will be, perhaps, some questions of political significance to answer. In the latter case, the DG CNET top management will have a lot of explaining to do.

The Institutions have taken measures instill a culture of accountability within their own administrative departments. This is precisely the reason why there has been a zero tolerance to improper behaviour and conduct by officials. The EU legislature enacted article 49 of Regulation No 45/2001 precisely because it intended strict compliance with the Regulation. Therefore, every single document related to a willful disregard of Regulation No 45/2001 as a matter of 'policy' by an administrative department of the European Commission is subject to an overriding public interest and its full release is warranted, save the parts covered by article 4(1)(b) of Regulation No 1049/2001.

Yours faithfully,

Mr. Tasos Ntetsikas

Communications Networks, Content and Technology

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Dear Sir,
 
Thank you for your e-mail dated 26/06/2013.  We hereby acknowledge receipt
of your application for access to documents, which was registered on
27/06/2013 under reference number GestDem 2013/3375.
 
In accordance with Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, your application
will be handled within 15 working days. The time limit will expire on
18/07/2013. In case this time limit needs to be extended, you will be
informed in due course.
 
Yours faithfully,
 
 
BLURIOT-PUEBLA Madeleine
Cellule 'Accès aux documents'
 
European Commission
SG/B/5 - Transparence

BERL 05/330
B-1049 Brussels/Belgium
+32 2 296 09 97
[1][email address]
 
 

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EC ARES NOREPLY, Communications Networks, Content and Technology

1 Attachment

Dear Sir,

Please find attached document Ares(2013)2577815 concerning "Your application for access to documents – Ref GestDem No 2013/3375 Fair solution to address your application (Article 6 of Regulation 1049/2001)" sent by Ms ENGELBOSCH Katleen on 05/07/2013.

Kind regards.

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Note: This e-mail was automatically generated by the European Commission's central mail registration system.
Replies by e-mail must be addressed to the original sender ENGELBOSCH Katleen (mailto:[email address]).
Remarque : Cet e-mail a été généré automatiquement par le système d'enregistrement central du courrier de la Commission européenne.
Toute réponse éventuelle par e-mail doit être adressée à l'expéditeur en personne, à savoir ENGELBOSCH Katleen (mailto:[email address]).

Mr. Tasos Ntetsikas

Dear Communications Networks, Content and Technology (CNECT),

Thank you for your letter Ares(2013)2577815 - 05/07/2013.

It is evident that DG CNET has analysed the application and concluded that it ‘concerns a large number of voluminous documents which need to be assessed individually. Such a detailed analysis cannot be carried out within the normal time limits set out in Article 7 of Regulation 1049/2001’.

This note sets out, first, some initial observations about the DG CNET initial ‘conclusion’, second, draws the attention of CNET to the documents the Commission services have already released pursuant to Regulation No 1049/2001 that are highly relevant to the present application, and third, proposes a fair solution.

A. OBSERVATIONS ON THE TOTAL NUMBER OF DOCUMENTS

In my view, DG CNET Unit R.4 ‘Compliance’ need not be reminded the relevant case law of the EU Courts about the obligations of an Institution to carry out a diligent search to identify documents within the scope of an application pursuant to Regulation No 1049/2001.

Presumably, DG CNET searched for documents falling under the present GestDem 2013/3375. The following paragraphs put forward some considerations on the number of documents possibly falling under the scope of the application in question. For the purposes of this email the term ‘document’ refers to a single document and all annexes thereto.

- AD1. DG CNET Anti-fraud Strategy from 1/1/2010 onwards: Three (3) documents, for each of 2010, 2011, and 2012, as the 2013 strategy is probably under development.

- AD2. DG CNET Anti-fraud Strategy from 1/1/2010 onwards: Three (3) documents, for each of 2010, 2011, and 2012, as the 2013 policy is probably under development. Furthermore, since it is not necessary that the documents defining the ‘Policy’ are different from those defining the ‘Strategy’, the actual number of documents may be zero.

- AD3. DG CNET Operational Measures from 1/1/2010 onwards excluding those concerning DG CNET – OLAF collaboration: Arguably, the FP7 Audit Process Handbook might fall under the scope of GestDem 2013/3375; a mere guess is, say, five (5) single distinct documents.

- AD4. DG CNET Operational Measures from 1/1/2010 onwards specifically for the DG CNET – OLAF collaboration: There may tens of other documents setting out the cooperation and collaboration of DG CNET with OLAF, which are distinct from those under AD1, AD2 and AD3 above.

- B1. DG CNET (or former DG INFSO) Internal Audit Manuals, from 1/1/2007 onwards: Assuming a single document for each year 2007-2012, six (6) documents.

- C1. The Bi-annual Management Reports from the Director-General to the respective Member of the Commission from 1/1/2007 onwards: Assuming two documents (final versions only) for each year 2007-2012, twelve (12) documents.

Excluding the (AD4) documents, the maximum total number is in the order of 3+3+5+6+12 = 29 documents.

As evidenced from Judgments of the EU Courts, other applications for documents pursuant to Regulation No 1049/2001 have concerned more than 50 documents. A total figure of 29 is not that exceptionally high.

Having due regard to the DG CNET finding that the application ‘concerns a large number of voluminous documents’, a necessary corollary is that, by definition, the voluminous nature of the documentation means a very detailed and comprehensive setting out of the DG INFSO – DG CNET approach, strategy and methodology about the underlying subject-matter(s). The mere establishing that DG INFSO and DG CNET had willfully and intentionally adopted a ‘policy’ of disregard of Regulation No 45/2001 will automatically render all those documents subject to a full release on account of an overriding public interest, except those parts of the documents covered by article 4(1)(b) of Regulation No 1049/2001, and under the strict condition that the protection is worthy and legitimate. In my view, in cases of a willful infringement of any provision of Union law by an official, article 4(1)(b) should not be applied to withhold from the public the identity of the offending official, especially a high-ranking one.

B. DOCUMENTS RELEASED TO OTHER APPLICANTS PURSUANT TO REGULATION NO 1049/2001

As DG CNET will immediately be able to verify, the Commission services have released (partially or fully) the following documents during the last 12 months:

- R1: ‘DG INFSO Anti-fraud strategy’ Ares(2011)956325. It was partially released as document Ares(2013)614248 - 09/04/2013 under GestDem 2012/4254.

- R2: ‘Common anti-fraud strategy in the Research family (RAFS) to counter the risk of fraud and fraudulent behavior within the activities financed by the EC Research Framework Programmes’ Ares(2012)911323 - 26/07/2012. It was fully released under GestDem 2013/1084.

- R3: ‘DG REGIO, DG EMPL and DG MARE in cooperation with OLAF, Joint Fraud Prevention Strategy for ERDF, ESF, CF and EFF 2010-2011’. It was fully released under GestDem 2012/5751, Ares(2013)118068 - 30/01/2013.

- R4: ‘DG RTD Internal Audit Manual’ Ares(2012)1522269 - 19/12/2012. It was fully released under request GestDem 2013/2065 - Ares(2013)1500943

- R5: ‘Guidelines on Internal auditing and relations with all DG RTD staff members’. It was fully released under request GestDem 2013/2065 - Ares(2013)1500943.

In view of the release of the above documents, the attention of DG CNET is drawn to the following:

- O1. DG CNET is under an unquestionable and absolute legal obligation to release the document ‘DG INFSO Anti-fraud strategy’ Ares(2013)614248 without the slightest delay.

- O2. DG CNET is under an obligation to consider whether the EU law imposes an obligation to fully release, as opposed to the partial release of document Ares(2013) 614248, the ‘DG INFSO Anti-fraud strategy’, on the grounds of an overriding public interest. This is indeed in my view the case in the light of what has emerged from the recent applications pursuant to Regulation No 1049/2001 in ‘asktheue.org’ about the lawfulness of the external financial audits of the Research family DGs. A good example is GestDem 2013/3488, http://www.asktheeu.org/en/request/exter..., and the proof therein that the DG INFSO DPO-3338.1 statement ‘This processing has been submitted to the EDPS who concluded that Article 27 is not applicable’ is manifestly ‘as inaccurate as it gets’.

- O3. DG CNET and the Commission cannot possibly argue that the ‘DG INFSO Anti-fraud strategy’ is not to be fully released, even though the Anti-fraud Strategies under (R2) and (R3) above were fully released.

- O4. DG CNET cannot argue that its Internal Audit Manuals are not to be fully released in view of DG RTD having released its own one.

C. PROPOSAL FOR A FAIR SOLUTION

It is re-iterated that DG CNET is to release without delay the ‘DG INFSO Anti-fraud strategy’ Ares(2011)956325, version of GestDem 2012/4254.

It is suggested that DG CNET release documents in decreasing order of priority (lower figure means earlier release):

1. DG INFSO Anti-fraud strategy, full release of all successive versions

2. Anti-fraud Operational Measures: FP7 Audit Processes Handbook

3. DG INFSO – DG CNET Internal Audit Manuals

4. The two biannual management reports submitted to the Commissioner for 2011

5. The two biannual management reports submitted to the Commissioner for 2012

6. The two biannual management reports submitted to the Commissioner for 2010

7. The two biannual management reports submitted to the Commissioner for 2009

8. The two biannual management reports submitted to the Commissioner for 2008

9. The two biannual management reports submitted to the Commissioner for 2007

10. Anti-fraud Operational Measures

11. DG INFSO – DG CNET Anti-fraud Policies, provided that they are distinct documents from the Ant-fraud Strategy

Yours faithfully,

Mr. Tasos Ntetsikas

EC ARES NOREPLY, Communications Networks, Content and Technology

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Dear Sir,

Please find attached document Ares(2013)2746082 concerning "Your application for access to documents – Ref GestDem No 2013/3375 under Regulation 1049/2011 regarding public access to European Parliament, Council and Commission documents – partial reply" sent by Ms Madelin Robert on 24/07/2013.

Kind regards.

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Note: This e-mail was automatically generated by the European Commission's central mail registration system.
Replies by e-mail must be addressed to the original sender Madelin Robert (mailto:[email address]).
Remarque : Cet e-mail a été généré automatiquement par le système d'enregistrement central du courrier de la Commission européenne.
Toute réponse éventuelle par e-mail doit être adressée à l'expéditeur en personne, à savoir Madelin Robert (mailto:[email address]).

Mr. Tasos Ntetsikas

Dear Communications Networks, Content and Technology (CNECT),

This is a confirmatory application that is to be transferred to the Secretariat-General.

Referring to the DG CNET initial reply Ares(2013)2746082 - 24/07/2013, this is a confirmatory application for the full release of the documents:

a. DG INFSO Control and Anti-fraud strategy, 10/9/2010

b. DG INFSO Anti-fraud strategy 2011, apparently Ares(2011)956325 – 9/9/2011)

c.‘DG INFSO's Anti-Fraud Measures’ expressly referred to in page 6 of document (a) above, and clearly falling under the scope of the application which concerns ‘The documents describing the DG CNET Anti-fraud Strategy,
Policy, and Operational Organisation, from 1/1/2010 onwards’

1. THE CONTEXT OF THE APPLICATION

On the 30/7/2013 it emerged in GestDem 2013/3639, Ares(2013)2785741 http://www.asktheeu.org/en/request/639/r..., that DG RTD has not requested the opinion of the Legal Services about the FP6 Audit Manual. Whereas the initial application (http://www.asktheeu.org/en/request/fp6_a...) has quoted 5 pages of the FP6 Audit Manual - volume entitled 'Guidelines to
on-the-spot financial audits on FP6 Contracts' of 15/9/2006 – the Legal Services have not contested that those 5 pages are not a genuine copy of the manual. This implies that the text is genuine, and consequently it is manifestly evident that the Research family DGs had adopted a concealed policy of processing personal data in external financial audits, even though there was no provision whatsoever of Union law and no contractual stipulation.

The DG CNET initial reply has invoked the need to protect certain parts of the DG CNET audits. Part of this reply reads:

“The exception aimed at protecting the purpose of audits only applies to limited parts, which have been expunged in the attached copies. The disclosure of the parts that have been blanked out would reveal information on the manner in which audits are concretely carried out. This would seriously reduce the effectiveness of the audit capacity of the Commission.”

DG CNET has not stated what exactly those audits are. This is no coincidence since DG CNET wants to avoid at all costs admitting that these audits are the contractual FP6 and FP7 external financial audits pursuant to articles FP6.II.29 and FP7.II.22. In 2010-2012 external auditors (private sector audit firms that had signed framework contracts with DG RTD such as KPMG Germany) had conducted approximately 80% of those audits.

The DG CNET audits are not pursuant to Union law, such as those of the Court of Auditors.

The external financial audits have entailed massive personal data processing of third parties to the audited contracts/projects, that it to say the staff of the FP6 contractors and FP7 beneficiaries charged to the audited contracts/projects. None of the conditions of article 5 of Regulation No 45/2001 is satisfied as regards to the audits.

At the time the partially released documents ‘DG INFSO'S CONTROL & ANTI-FRAUD STRATEGY VERSION MARCH 2010’ was drawn up, no article 25 prior notification of Regulation No 45/2001 was applicable to the DG INFSO audits. The relevant prior notification DPO-3338.1 was drawn up on 2/2/2011. It has two false declarations, namely ‘This processing has been submitted to the EDPS who concluded that Article 27 is not applicable’ and ‘3. Sub-Contractors —’.

The EDPS false statement in now public information, EDPS document ref. C 2013 0714, bottom of page 2, http://www.asktheeu.org/en/request/594. The statement about subcontractors is manifestly false. In addition, the purported legal basis of DPO-3338.1 has nothing to do with external financial audits to contractual counter-parties of the Commission.

It must thus be concluded that not only the DG INFSO – DG CNET external financial audits are unlawful, but they are marred by false declarations.

The DG INFSO – DG CNET Anti-fraud strategy, policy and operational measures are meaningless without the audits. In the absence of audits, the anti-fraud initiatives are confined to the area of proposal evaluation and contract negotiations. Regular project reviews are perfectly capable of spotting any deficiency in a contractual deliverable, and immediately reject the associated costs. There is no reason to elevate the normal contractual deliverable review and approval activities to anti-fraud activities, unless several DG INFSO - DG CNET officials had been actively participating to the fraudulent ring.

It is in this context that DG CNET has relied on articles 4(1) fourth indent and 4(2) third indent to grant partial access to the two released documents. The DG CNET position is analysed below.

2. RELIANCE ON ARTICLE 4(2) THIRD INDENT ‘PURPOSES OF AUDITS’

As an initial remark, the initial application under (A3) put to DG CNET that this provision may not be relied upon to refuse total access. DG CNET did not, seemingly, take into consideration at all those arguments and the implications of the false declarations of DPO-3338.1, but instead gave an excuse for the partial release that is nothing more than a ‘fig leaf’.

2.1 THE LEGAL NATURE OF DG INFSO & DG CNET AUDITS AS CONTRACTUAL MEASURES

The Union Courts have on several occasions ruled on the application of article 4(2) third indent. The majority of the Judgments concern documents the Commission had obtained in anti-trust investigations and merger controls, which DG COMP has been conducting. There are a few Judgments about OLAF’s inspections and investigations, but no Case about an audit pursuant to Union law and release of documents pursuant to Regulation No 1049/2001. Since both the DG COMP and OLAF’s investigations and inspections are carried out on the basis of express stipulations of Union law (e.g. Regulations No 1/2003 and 1073/99 respectively), it can be concluded with absolute certainty that the audits protected by article 4(2) third indent are governed by Union law, not audits pursuant to mere contractual provisions like FP6.II.29 and FP7.II.22.

DG CNET cannot and should even attempt to deny access to documents by relying on article 4(2) third indent for contractual audits.

Article 19(3) or Regulation No 1906/2006 ‘FP7 Rules of Participation reads: “The model grant agreement shall provide for supervision and financial control by the Commission or any representative authorised by it, and the Court of Auditors”. There is no provision in that Regulation, or in any other provision of Union law, about ‘financial audits’. If the EU legislature had indented to provide for Union law regarding audits, it would have enacted a specific provision.

Although it is plainly oblivious that (i) the Court of Auditors audits the accounts of the Institutions and beneficiaries in receipt of payments from the budget and (ii) DG COMP conducts anti-trust investigations, and not vice versa, the legal reason of such arrangement is firmly grounded in the Treaties and secondary legislation. Union law regulates the conduct of citizens, private law legal persons and Institutions. For any particular field of economic activities, the total absence of Union law, be it primary or secondary, authorising an Institution to take administrative measures (such as investigations and audits) towards third parties in a particular field of economic activities is to be interpreted, in principle, as an Institution’s lack of a legal mandate to act in that particular field. Disregarding that principle and intervening into the affairs of an economic operator (or undertaking) will risk an outright contravention of articles TEU 5(4) §2 and 13(2). It is precisely for these reasons that the DG INFSO – DG CNET audits cannot be construed as pursuant to Union law, and thus cannot be protected by article 4(2) third indent.

Any interpretation that contractual provisions are within the scope of article 4(2) third indent would effectively create the means to place outside the transparency obligation vast swaths of the documents held by an Institution. For example, an Institution could contract with a private sector entity such that the latter ‘audits’ the editorial quality of all those documents, and the linguistic and scientific competencies of their authors. Article 4(2) third indent is silent about whether the afforded protection concerns an Institution acting as an auditor or auditee. The example ‘audit’ could take five years to complete. During that period, the vast swath of documents would be undergoing ‘auditing’. According to the DG CNET logic, the contractual audit implies that the documents are not to be released pursuant to Regulation No 1049/2001, which is of course an utter nonsense.

2.2. PROTECTION OF CONCRETE AUDITS

Article 4(2) third indent affords protection from disclosure of the purposes of a concrete and individual audit pursuant to Union law and not the abstract organizational structure of hundreds of audits. If the DG CNET logic to refuse total access were to be universally accepted, then the Court of Auditors ought not to have published its voluminous audit manuals, such as http://eca.europa.eu/portal/pls/portal/d.... Furthermore, the reasoning that the disclosure of the “information on the manner in which audits are concretely carried out. This would seriously reduce the effectiveness of the audit capacity of the Commission” calls into question why International Audit Standards are drawn up in the first place. An auditee is able to guess what audit evidence an auditor will seek to collect/establish in an audit according to such standards, and thus will be able to ‘hide’ unfavourable records for the auditor. The ultimate logical conclusion is that publishing audit standards ‘seriously reduces the effectiveness of the audit capacity’ of auditors. According to the DG CNET logic, the publishing of audit standards is ‘harmful’ to audits because again a great deal of information is disclosed ‘on the manner in which audits are concretely carried out’.

The absurdities of adopting the DG CNET reasoning are plainly obvious. For this reason, the DG CNET reasoning to refuse total access on the grounds of ‘seriously reduce the effectiveness of the audit capacity ….’ must be rejected in its entirety.

2.3 CONCLUSION

In the light of the preceding two sub-sections, the DG CNET identified risk of revealing “information on the manner in which audits are concretely carried out” and thus “seriously ‘reducing’ the effectiveness of the audit capacity” is utterly irrelevant with respect to article 4(2) third indent ‘protection of the purposes of audits’.

3. PROTECTION OF THE PUBLIC INTEREST AS REGARDS THE UNION’S FINANCIAL POLICY

3.1. IRRELEVANCY OF ARTICLE 4(1) FOURTH INDENT TO THE DG CNET ANTI-FRAUD POLICY

According to the DG CNET initial reply, article 4(1) forth indents is applicable:

“Since full public access to the documents requested would weaken the Commission's audit capacity, this would also have a negative impact on the budget of the EU, as the Commission would have more difficulties in detecting irregularities and cases of fraud. Thus, the documents requested should be expunged in order to protect the financial interests of the EU and avoid any damage in this regard.”

In my view, DG CNET ought to have realised that such sweeping generalisations border the absurd. There are several huge leaps of logic in such a generalisation because (indicative list):

- The ‘financial interests’ are very distinct from the ‘financial policy’.

- Contractual measures like audits pursuant to FP6.II.29 and FP7.II.22 have absolutely nothing to do with the Union’s financial policy.

- The work of the DG CNET divisions responsible for FP6 & FP7 is not related at all with the Union’s ‘financial policy’.

- In actions before the General Court about Regulation No 1049/2001 about the release of DG COMP documents (directly concerned with anti-trust and mergers investigations), the Commission has not advanced arguments about article 4(1) fourth indent and the public interest regarding the ‘Union’s economic policy’.

- If for documents drawn up or obtained in the framework of an administrative procedure pursuant to Union law (e.g. DG COMP relying on Regulation 1/2003) DG COMP does not rely on article 4(1) fourth indent to refuse access, a fortiori DG CNET cannot rely on this provision to refuse access to an abstract organisation of an anti-fraud policy which is itself based on contractual audits.

- The Members of the Commission responsible for the financial policy are those dealing with the policy areas of: (i) Financial Programming and the Budget, (ii) Taxation and Customs Union, Audit and Anti-Fraud and (iii) Administrative Affairs, Audit and Anti-Fraud. Which exactly are the administrative departments of the Commission assisting the Members of the Commission in those matters is self-evident. DG CNET is most certainly not one of them.

- The Directorates-General and their tasks have either an one-to-one or a very close correspondence with the TFEU articles. Just looking at the table of contents of TFEU, it becomes obvious that the Union’s research and technological policy is absolutely distinct from the ‘financial policy’.

In my opinion and out of respect to the Members of the Commission and their sphere of responsibilities, DG CNET – as an administrative department - ought not to even dare think to ‘encroach’ in these spheres in order to lend support to its unlawful refusal to grant total access to the requested DG INFSO – DG CNET Anti-fraud policy and strategy, especially for DG INFSO – DG CNET activities marred by illegalities.

3.2. THE FALLACY OF PROTECTING THE FINANCIAL INTERESTS AT THE EXPENSE OF IGNORING EVERYTHING ELSE

DG CNET attempts to assert the legitimacy of its refusal for total access is based on the protection of the Union’s financial interests. In other words, the ‘financial interests’ is some kind of a ‘Holy Grail’ and it must be pursued with such a single-mindedness that everything else becomes irrelevant.

DG CNET tends to overlook that societies advance economically by being based on democracy, the rule of law, respect of fundamental rights, personal freedom, entrepreneurial spirit, solidarity, respect for the environment, to name but a few. The tax-payers financial interests are to be understood and safeguarded in such context, or otherwise all sorts of perverse arguments may be advanced. This it briefly touched upon below.

Looking at just the taxpayers’ financial interests and ignoring everything else, the very foundations of advance democracies are inflicting ‘damage’ to the taxpayer’s financial interests. Take of example publicly-funded education, which is a near universal norm in the Union. Whereas it really costs a lot of money, nobody is seriously advocating its roll back because it damages the taxpayers’ financial interests. Societies have long realised that the cost-benefit of publicly funded education is very positive.

Referring to societies that have economic growth rates of over 8% in the last three decades, are not democratically governed but apply to a substantial extent some kind of a ‘rule of law’, have a mixed record on upholding fundamental rights, and are considered by the Western world as their chief economic competitors, their governments make the argument that the economic and financial interests of the societies justify their non-democratic nature and a half-baked respect of fundamental rights. The European Union has wholesale rejected this argument and puts pressure on then to respect fundamental rights.

This line of reasoning essentially says that the European Union has consistently attached higher importance to fundamental rights than the narrow economic and financial interests.

Contrary to the implied DG CNET of reasoning, the rule of law is conducive to economic progress and protects the financial interest of the citizens. Enforcement of property rights is a classical example. In societies with relatively modest protection of property rights, economic studies have found that it hampers economic progress for several reasons, including that citizens spend time and money in protecting what they already possess from unlawful encroaching, instead of spending their energies on wealth creation.

The obsession of DG CNET with audits have created some kind of a similar atmosphere, as FP7 beneficiaries have taken the cue that observance of formalities is the ‘only game in town’.

DG CNET has also to start considering how it will answer to the public the following questions:

- DG INFSO – DG CNET officials had been perfectly aware of the grave breaches of Regulation No 45/2001 in FP6 and FP7, in spite of the article 49 provisions for the automatic disciplinary liability.

- By definition, such a policy erodes the moral standing of the top management of DG INFSO. In other words, the ‘tone at the top’ was ‘we disregard legality when it suits our purposes’.

- When such an unwritten policy was adopted, a few DG INFSO officials must have concluded that ‘anything goes’ in FP6 and FP7. Such DG INFSO officials might had been tempted to assemble a few of the expert panels evaluating proposals by hand-picking these experts from their own circle of ‘friends’, or the ‘friends’ of their bosses, or even the ‘friends’ of the bosses of their bosses, and then favouring their own ‘pet’ projects or those of their bosses in proposal evaluation. Then experts assisting in project reviews might have been selected from the same circles of ‘friends’.

- This calls into question what exactly was going on in some Units of the former DG INFSO, for how many years it had been going on, and why the DG INFSO top management was seemingly looking the other way when some obscure research institutes had been - for more than a decade - far more successful in FP4, FP5, FP6 and FP7 proposals than the world-class European research centres.

- The same arguments apply for SME that have packed some FP6 and FP7 projects, while at the same time it was patently obvious that those SME had no track record whatsoever, not even any business, in the subject matter (e.g. vehicle safety).

The above questions suggest that DG INFSO had been some kind of a ‘play garden’ where the risk of going out line was extremely high.

The DG INFSO – DG CNET obsessiveness with and the prominence of ‘high-risk’ audits suggests that the above ‘questions/scenarios’ are not entirely divorced from reality.

The really big question is why DG INFSO did not confront the issue head-on, but went around to partially deal with the issue with the extensive financial audits campaign and the anti-fraud strategy, which immediately created according to EARTO an atmosphere of ‘mistrust’, led to the signing of a protest by over 10,000 researchers, and several years later has led to applications putting forwards arguments like those herein.

In view of the above-mentioned DG CNET illegalities, it follows therefore that the DG CNET implicit argument that the protection of financial interests reigns supreme, even at the expense of disregarding other provisions of Union law, must not only be rejected outright, but it also gives rise to concerns about the ethics, morality and the integrity of DG CNET, again as an administrative department.

4. QUESTIONING THE DG CNET ANTI-FRAUD POLICY

In my view, the link between the DG CNET audits and its Anti-fraud policy has a host of disturbing elements. It will be briefly discussed below.

According to the DG INFSO Annual Activity Reports, more than 50% of the DG INFSO FP6 expenditure was audited. The FP7 audit coverage target is also set at 50%. This shows that audits are extremely common. Therefore, it is wholly perplexing why such an ordinary activity like an audit is closely associated with an Anti-fraud policy. If audits have been an essential element of the DG INFSO – DG CNET Anti-fraud policy, it necessarily follows that proposal evaluation and project reviews ought to fare prominent in the Anti-fraud policy. The released two documents touch very lightly on proposal evaluation and project reviews.

This, in turn, means that either the research community subsidised by DG INFSO – DG CNET is extremely prone to over-claims and probably to ‘fraud’, or that DG INFSO DG CNET has made a terrible errors in its pursuit of the 50% audit coverage campaign. These errors entailed (i) grave infringements of a host of provisions of Union law, (ii) alienated the research community, (iii) probably having driven away from FP7 a sizable group of innovative firms, and (iv) last but not least having ‘fabricated’ contractual infringements when none in fact had existed (e.g. unreliability of time-recording in the total absence of Union law and contractual provisions).

In terms of third-party purchases, the total annual expenditure of the Commission in Information Technology is in the order of 1 billion Euro. This is a very considerable sum of money, of the same order of magnitude as the DG INFSO-DG CNET annual disbursement of research subsidies. In both areas, competitive call for tenders/proposals are organised, private law contracts are concluded with an arbitration clause, and all contractual deliverables are expressly approved prior to payment/subsidy disbursement. Yet the Commission’s payments to third parties for IT services do not fare prominently in the Commission’s Anti-fraud strategy; in fact, they do not appear at all.

This striking difference calls into question why on earth audits and Anti-fraud policies have been so high in the agenda of DG INFSO – DG CNET. It is understandable than once every few years an odd case may be referred to OLAF for suspected irregularities, but the DG INFSO – DG CNET obsession with audits and anti-fraud measures is inexplicable, at least with the information in the public domain.

Even the ‘Cocoon case’ of page 35 of the 2011 DG INFSO Annual Report is in itself problematic on close examination. According to the report, DG INFSO carried out 78 audits on projects and recovered 8 million Euro of unduly paid subsidies, presumably from financial audits. DG INFSO was supposed to have approved every single contractual deliverable of the ‘Cocoon case’ projects prior to approving financial claims. It is mind-boggling to understand how financial claims of 16 million Euro (based on an assumption of 50% funding rate), which can be estimated to correspond to 100 - 200 person-years of work, were expressly approved in the sense of having expressly approved contractual deliverables but which later were rejected in financial audits.

A very high degree of arbitrariness and unlawfulness of the DG INFSO audits can be inferred from the Judgement of the General Court, T-312/10 ELE.SI.A v Commission, which concerns the FP6-027195 I-WAY project of DG INFSO. It appears that the an external contractor-auditor of DG INFSO found the ELE.SI.A time-sheets as not meeting its own views, with DG INFSO subsequently concurring. Yet, neither there is a provision of Union law about time-sheets in FP6 and FP7 nor the FP6 contract and the FP7 grant agreement state anything about it. Any contractual claim against ELE.SI.A based on unlawfully processed personal data is in itself highly questionable, as it is based on inadmissible evidence. That ELE.SI.A did not raise such a plea is merely an indication of a rather inadequate legal analysis of the facts and law, and cannot be construed as an endorsement by the General Court of relying on inadmissible evidence. ELE.SI.A did indeed attempted at the hearing to argue for infringement of Regulation No 45/2001, but apparently its lawyers did not do a good job, as they did not put to the Court that compliance with Regulation No 45/2001 is a matter of public policy that the Court ought to have considered on its own motion.

There are several actions pending before the General Court for FP7 contractual disputes, with Case T-165/13 Talanton v Commission as one example. From the order of the President of the Court of 8/5/2013 dismissing the application for interim measures, is seems that Talanton has not realised, (i) the infringements at the field audit by KPMG Greece of the personal data protection legislation of Greece, (ii) the infringements of the personal data protection legislation of Germany by the signatory of the final audit report KPMG Germany, (iii) the numerous infringements of Regulation No 45/2001 by DG CNET R.4 (final audit report was dispatched in January 2013), and (iv) any reliance of the Legal Services on unlawfully processed personal data as evidence is automatically reliance on inadmissible evidence. The Commission in numerous cases before the Union Courts has requested the removal from the file of its own internal documents not properly disclosed to the other party to the judicial proceedings. It remains to be seen how from now on the Legal Services will argue their case before the Courts in FP6 and FP7 contractual disputes.

It does not take an advanced post-graduate degree in a legal field to realise what an extremely dim view the Union Courts will take about the external financial audits of the Research family DGs that are marred by false declarations and a non-existing legal basis.

5. DG INFSO ANTI-FRAUD MEASURES TOTALLY WITHHELD

DG CNET has been totally silent about the document ‘DG INFSO's Anti-Fraud Measures’ that is expressly referred to in page 6 of the released document ‘INFSO Control and Anti-fraud strategy, 10/9/2010’.

This can only be interpreted as a total refusal to disclose it, without a statement of reasons. If that were a final decision in a request pursuant to Regulation No 1049/2001, in the event of an action before the General Court, such a decision will be annulled for having dismally failed to state the reasons.

DG CNET has to realise that the partially released documents often contain references to other documents, and thus ‘expose’ DG CNET to fresh application for the latter documents. It implies that DG CNET will have to disclose far less in partially released documents to avoid revealing the existence of other ‘embarrassing’ documents, thereby risking unjustified partial disclosure.

At any rate, DG CNET will have to face the grim reality that there not enough exceptions in Regulation No 1049/2001 to prevent the disclosure of its unlawful policies and strategies in external financial audits and the other strategies that have relied on the audits.

6. OVERRIDING PUBLIC INTEREST

First of all, the statement of the initial reply

“Having analysed your request, we have not found any elements which could justify the existence of an overriding public interest in the sense of the Regulation, which would outweigh the exceptions stipulated in Article 4(2) mentioned above.”

is a mere stereotypical one, which must be rejected as arbitrary and illogical. Contrary to the DG CNET assertion, the initial application under (A5) argued about the overriding public interest.

In my view, the reasoning under section (4) above is a very strong statement for an overriding public interest.

It is understandable that DG CNET will desperately seek to prevent the disclosure to the public of further evidence of its gravely unlawful acts. That DG INFSO reached so low to file false declarations in DPO-3338 is in itself a sufficient proof that DG CNET – as an administrative department dealing with FP6 and FP7 – is some kind of a ‘group of officials’ protecting its own narrow interests as a bureaucracy, covering up is huge shortcomings in properly managing FP6 and FP7, and seeking to avoid further personal liabilities as stipulated by the Staff Regulations.

The Commission delegated the authority to the Secretary-General to adopt decisions pursuant to Regulation No 1049/2001 with the advice of the Legal Services under the presumption that the Secretary-General will uphold the law.

In my opinion, it will be a breach of the implied trust of the Commission delegating authority to the Secretary-General, namely that the Secretary-General will respect the law, anything but the full release of the three documents at issue. While a collegial sympathy to the plight of DG CNET is understandable, there are far greater interests at stake in this particular application.

At the end of the day, siding with DG CNET and refusing full release of the three documents risks the engendering into the citizen’s minds of extremely serious doubts about the honesty and integrity of the Secretariat-General and the Legal Services. It is far from certain that the public’s interest will be served by taking such risks.

It all boils down as to whether it is worth destroying the public’s confidence in the ethics, moral values and integrity of ALL administrative departments of the guarding of the Treaties for the sake of protecting DG CNET from further embarrassing disclosures of its unlawful policies and strategies, which will be disclosed anyway in the broad daylight before the General Court in the medium-term future.

7. CONFIRMATORY APPLICATION

A confirmatory application is hereby submitted for the full release of:

a. DG INFSO Control and Anti-fraud strategy, 10/9/2010

b. DG INFSO Anti-fraud strategy 2011, apparently Ares(2011)956325 – 9/9/2011)

c.‘DG INFSO's Anti-Fraud Measures’ expressly referred to in page 6 of document (a) above

I am confident that the Commission services will duly take into account all the foregoing arguments.

Yours faithfully,

Mr. Tasos Ntetsikas

Communications Networks, Content and Technology

2 Attachments

Dear Mr Ntetsikas,

 

Kindly find herewith a letter concerning your e-mail dated 31/07/2013
about a confirmatory application for access to documents (gestdem
2013-3375).

 

Yours sincerely,

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

 

show quoted sections

Mr. Tasos Ntetsikas

Dear Communications Networks, Content and Technology (CNECT),

This message provides the Secretariat General with the clarifications requested in its letter Ares (2013) 2829855 - 05/08/2013. It is to be forwarded to that Directorate-General.

Indeed, the confirmatory application lodged on 31/7/2013 concerns only the documents falling under request (1) of the initial application, for which DG CNET provided the initial answer Ares(2013)2746082 - 24/07/2013.

As set out in the application dated 31/7/2013, the three documents at issue are:

“a. DG INFSO Control and Anti-fraud strategy, 10/9/2010

b. DG INFSO Anti-fraud strategy 2011, apparently Ares(2011)956325 – 9/9/2011)

c.‘DG INFSO's Anti-Fraud Measures’ expressly referred to in page 6 of document (a) above, and clearly falling under the scope of the application which concerns ‘The documents describing the DG CNET Anti-fraud Strategy, Policy, and Operational Organisation, from 1/1/2010 onwards’”

The documents under (a) and (b) above were partially released, so the present confirmatory application concerns the full release of these two documents.

The existence of the document under (c) emerged by way of partially releasing the document under (a) above; it is referred to in the document entitled ‘DG INFSO'S CONTROL & ANTI-FRAUD STRATEGY VERSION MARCH 2010’, page 6 (Annex 2.pdf of the initial reply), which reads:

‘Obviously, the implementation of the additional actions mentioned above has implications in terms of assignment of tasks and allocation of resources. These are documented in a separate document on "DG INFSO's Anti-Fraud Measures"’

The document(s) entitled “DG INFSO's Anti-Fraud Measures” falls within the scope of request under (1) which reads ‘1. The documents describing the DG CNET Anti-fraud Strategy, Policy, and Operational Organisation, from 1/1/2010 onwards’, since the ‘Operational Organisation’ that is distinct from the strategy and policy directly concerns the ‘Anti-Fraud Measures’.

In the interest of procedural economy, in my view the release of the document under (c) is to be considered in the framework of this particular application. The alternative is the lodging of a fresh application. If necessary, it may considered as a supplementary application.

I trust that I have provided the requested clarifications regarding the confirmatory application.

Yours faithfully,

Mr. Tasos Ntetsikas

Communications Networks, Content and Technology

L'activité des services de la Commission européenne étant réduite durant
le mois d'août, vos demandes d'accès aux documents seront traitées dans
les meilleurs délais. Toutefois, certains retards peuvent se produire, en
particulier lorsque le traitement des données exige la consultation des
administrations nationales, d’organisations extérieures ou d’autres
services.

*  *  *

Die Tätigkeiten der Dienststellen der Europäischen Kommission sind im
August reduziert; Ihre Anträge auf Zugang zu Dokumenten werden dennoch so
schnell wie möglich bearbeitet. Allerdings können Verzögerungen auftreten,
insbesondere wenn die Berarbeitung der Anträge die Konsultierung der
nationalen Verwaltungen, externer Organisationen oder anderer
Dienststellen erforderlich macht.

* *  *

The activity of European Commission departments is likely to be reduced
during August.  We will handle  your requests for access to documents as
soon as possible.  However, some delays may occur, especially where the
processing of data requires the consultation of national administrations,
external organisations or other services.

Communications Networks, Content and Technology

1 Attachment

Dear Mr Ntetsikas,   

 

Thank you for your e-mail dated 24/08/2013, registered on 13/09/2013.  I
hereby acknowledge receipt of your confirmatory application for access to
documents (ref.: Ares(2013)3041014 – gestdem 2013-3375). 

 

In accordance with Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents, you will receive a
response to your request within 15 working days (04/10/2013).

 

Yours sincerely, 

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

 

show quoted sections

Communications Networks, Content and Technology

1 Attachment

Dear Mr Ntetsikas,   

 

Thank you for your e-mail dated 24/08/2013, registered on 13/09/2013.  I
hereby acknowledge receipt of your confirmatory application for access to
documents (Points a + b below in bold - ref.: Ares(2013)3041014 – gestdem
2013-3375). 

 

In accordance with Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents, you will receive a
response to your request within 15 working days (04/10/2013).

 

Yours sincerely, 

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

 

show quoted sections

Communications Networks, Content and Technology

1 Attachment

Dear Mr Ntetsikas,

 

Thank you for your e-mail dated 34/08/2013 registered on 13/09/2013. I
hereby acknowledge receipt of your new request for access to documents
(point c below in bold - ref.: gestdem 2013-4573).

 

In accordance with Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents, you will receive a
response to your request within 15 working days (04/10/2013).

 

Yours sincerely,

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

 

show quoted sections

EC ARES NOREPLY, Communications Networks, Content and Technology

1 Attachment

Dear Sir,
Please find attached document Ares(2013)3091211 concerning "Your application for access to documents – Ref GestDem No 2013/4573 - Fair solution to address your application (Article 6 of Regulation 1049/2001)" sent by Ms ENGELBOSCH Katleen on 20/09/2013.
Kind regards.

-------------------------------------------------------------------------------------------------------------
Note: This e-mail was automatically generated by the European Commission's central mail registration system.
Replies by e-mail must be addressed to the original sender ENGELBOSCH Katleen (mailto:[email address]).
Remarque : Cet e-mail a été généré automatiquement par le système d'enregistrement central du courrier de la Commission européenne.
Toute réponse éventuelle par e-mail doit être adressée à l'expéditeur en personne, à savoir ENGELBOSCH Katleen (mailto:[email address]).

Mr. Tasos Ntetsikas

Dear Communications Networks, Content and Technology (CNECT),

I refer to the DG CNECT letter Ares(2013)3091211 of 20/9/2013 concerning the application GestDem 2013/4573. This is to provide the requested “feedback” to DG CNECT.

I. NON-COMPLIANCE WITH REGULATION NO 1049/2001

According to DG CNECT:

“The analysis of the document requested cannot be carried out within the normal time limits set out in Article 7 of Regulation 1049/2001.

However, the Regulation provides for a possibility to confer with applicants in order to
find a fair solution when an application concerns a very large number of documents.
Article 6(3) provides (...)”

It is crystal-clear that the request:

- Concerns a single document, which is not a very large one.

- Event if several documents are at issue, DG CNECT has not stated so.

- In so far the DG CNECT letter of 20/9/2013 is an objective description of the DG CNECT search for documents, Article 6(3) of Regulation No 1049/2001 is not applicable to the document(s) at issue because DG CNECT has not stated that the analysis concerns either a very large document or a large number of documents.

In addition, to the extent that DG CNECT has not stated that a large number of documents are at issue the DG CNECT proposal about handling the application in successive stages and releasing documents in batches is entirely meaningless.

To sum up, the DG CNECT “justification” to delay the release of the document(s) is in itself an infringement of article 6(3) of Regulation No 1049/2001.

II. PROVISION OF FURTHER INFORMATION AND PRIORITIES

Notwithstanding the above considerations, for the purposes of procedural economy and being constructive the priority (decreasing order) of releasing documents is set out below. The priority is expressed for several documents, just in case the DG CNECT letter of 20/9/2013 referred to single document by mistake.

References to “Pluto” below are to be understood as the audit method and information system described in the INTOSAI July 2010 publication “Alleged Fraud Involving Millions of Euros: Why Didn’t We Notice?” http://www.intosaijournal.org/technicala..., in which two senior members of former DG INFSO S.5 Unit are the lead authors.

1. The part(s) of the document(s) concerning personal data processing (e.g. time-sheets, CVs, checking profiles of researchers in sites line LinkedIn, data-mining of personal data)

2. The part(s) of the document(s) concerning the Pluto aspect “PLUTO is an intelligence database storing all information about the 15,000 beneficiaries and 5,000 research projects funded by DG INFSO”

3. The part(s) of the document(s) concerning the Pluto aspect “A complete inventory of people, companies, and projects under suspicion was drawn up.”

4. The part(s) of the document(s) concerning the Pluto aspect “Operational data from DG INFSO’s contractual and financial systems, dating back 10 years and comprising 500 gigabytes of information, were downloaded and indexed, allowing keyword search (names, amounts, and dates). This information was used in audit preparation and during the fieldwork”

I remain at your disposal for any additional information that may be useful.

Yours faithfully,

Mr. Tasos Ntetsikas

EC ARES NOREPLY, Communications Networks, Content and Technology

2 Attachments

Dear Sir,
Please find attached document Ares(2013)3133360 concerning "Your application for access to documents – Ref GestDem No 2013/3375 under Regulation 1049/2011 regarding public access to European Parliament, Council and Commission documents – partial reply" sent by Mr Madelin Robert on 30/09/2013.
Kind regards.

-------------------------------------------------------------------------------------------------------------
Note: This e-mail was automatically generated by the European Commission's central mail registration system.
Replies by e-mail must be addressed to the original sender Madelin Robert (mailto:[email address]).
Remarque : Cet e-mail a été généré automatiquement par le système d'enregistrement central du courrier de la Commission européenne.
Toute réponse éventuelle par e-mail doit être adressée à l'expéditeur en personne, à savoir Madelin Robert (mailto:[email address]).

Communications Networks, Content and Technology

2 Attachments

Dear Mr Ntetsikas,
Kindly find herewith a letter concerning your confirmatory application for
access to documents (gestdem 2013-3375).
       
Yours sincerely,
 
Paul SIMON
Unit SG.B.5, Transparency
European Commission
 

Mr. Tasos Ntetsikas

Dear Communications Networks, Content and Technology (CNECT),

This is to make enquiries about the DG CNECT initial reply regarding the documents in the applicant's preferred priority order:

#2. Anti-fraud Operational Measures: FP7 Audit Processes Handbook

#4. The two biannual management reports submitted to the Commissioner for 2011

#5. The two biannual management reports submitted to the Commissioner for 2012

#6. The two biannual management reports submitted to the Commissioner for 2010

#7. The two biannual management reports submitted to the Commissioner for 2009

#8. The two biannual management reports submitted to the Commissioner for 2008

#9. The two biannual management reports submitted to the Commissioner for 2007

More specifically, the priority order was set out in the applicant's clarification of 6/7/2013 pursuant to article 6(3) of Regulation No 1049/2001, http://www.asktheeu.org/en/request/dg_cn..., under section "C. PROPOSAL FOR A FAIR SOLUTION". The clarification was in response to the DG CNECT letter Ares(2013)2577815 - 05/07/2013.

I would like to take this opportunity to draw DG CENCT's attention to that the EDPS has spotted and documented, albeit in a very mild way, the prior notification DPO-3338.1 problems with legality. More specifically, in the EDPS Case 2012-0758, note to file dated 24/1/2013,
http://www.asktheeu.org/en/request/677/r..., according to the EDPS DPO-3398.1 has "unclear formulations". Then the EDPS goes on to say that the prior notification DPO-3338l.1 is misleading about a purported EDPS consultation (it never took place), "forgets" to state that subcontractors processors are engaged.

This is yet another argument for on overriding public interest to fully release all requested documents, especially in order to scrutinise to what extent DG INFSO had informed the Commissioner - as it ought to have done - about its concealed policy to seriously infringe numerous provisions of Regulation No 45/2001 in all external financial audits.

I am looking forward to hearing from DG CNECT.

Yours faithfully,

Mr. Tasos Ntetsikas

Communications Networks, Content and Technology

2 Attachments

Dear Mr Ntetsikas,
Kindly find herewith a letter concerning your confirmatory application for
access to documents (gestdem 2013-3375).
       
Yours sincerely,
 
Paul SIMON
Unit SG.B.5, Transparency
European Commission
 

Mr. Tasos Ntetsikas

Dear Communications Networks, Content and Technology (CNECT),

This is a message addressed to the Secretariat-General. I would appreciate if it is forwarded accordingly.

********

Dear Secretariat-General,

Referring to the letter of 24 October, Ares(2013) 3329980 about GestDem 3375-2013, this is to kindly draw the attention of the Secretariat-General to facts that have emerged after the submission of the confirmatory application, which have a direct and significant bearing on the confirmatory application.

The facts concern the DG INFSO risk-based audits and the misrepresentation of facts by the President of the Commission to the letter of 30 August addressed to the Ombudsman, Ares(2013)2952891 - 30/08/2013, http://www.asktheeu.org/en/request/583/r....

From the confirmatory application lodged with the Ombudsman, http://www.asktheeu.org/en/request/forme..., it emerges that the Commission services are prepared for almost anything to prevent the disclosure of information about their concealed policies to disregard Regulation 45/2001, Directive 95/46/EC, and the Staff Regulations as regards the DG INFSO risk-based audits.

It is exceedingly difficult to understand how the Commission services dared to mislead the President of the Institution of the guardian of the Treaties and cause him to state materially incorrect facts to the Ombudsman.

Such a practice further suggests that the Secretariat-General might yet again unlawfully rely on the exceptions of article 4 of Regulation 45/2001 to refuse total access to the documents requested under the present application.

The applicant respectfully suggests that at some point in time the Commission services must realise that further compromising their integrity to prevent the disclosure of information about the DG INFSO risk-based audits must come to an end. It is certain that in legal proceedings before the General Court and national Courts the DG INFSO concealed policies and wrongful acts in risk-based audits will be reviewed by the Courts. There is absolutely no way that those matters will remain hidden for ever.

The applicant expects that the Secretariat-General will dully consider the above arguments in GestDem 3375-2013.

Yours faithfully,

Mr. Tasos Ntetsikas

Mr. Tasos Ntetsikas

Dear Communications Networks, Content and Technology (CNECT),

Referring to GestDem 2013/4573 and my email of 23 October making enquiries about the status of the initial response as regards requests under (2), and (4) to (9), http://www.asktheeu.org/en/request/dg_cn..., this is a second reminder that DG CNECT has so far not provided me with any reply whatsoever.

The initial application was registered on 28 June, which is nearly five months ago. It is respectfully suggested that it is wholly unacceptable to wait for over four and a half months, also writing reminders, and yet DG CNECT being silent.

The documents in question will shed some light on whether DG INFSO/CNECT had informed the Commissioner, as it ought to have done, about all the important aspects of its risk-based audits. What has recently emerged in asktheeu.org has engender in the minds of citizens a near certainty that DG INFSO had been disregarding the fundamental right of personal data processing and several other provisions of Union law, including article 339 TFEU.

The DG INFSO documents released by the EDPS about the EDP complaint 0622-2008, in particular the document of 29/1/2009 INFSO-S5/FD/PYD D(2008) 103075 http://www.asktheeu.org/en/request/594/r... which concerns an early DG INFSO risk-based audit, shows that the former S.5 Unit had been disregarding Regulation 45/2001 and contravening article 339 TFEU as a matter of some sort of a policy.

The new old-time low concerning the letter of the President of the Commission of 30 August to the Ombudsman, http://www.asktheeu.org/en/request/583/r..., whose purpose is presumably to avoid further disclosures about the DG INFSO risk-based audits, proves that DG INFSO/CNECT has been in the business of disregarding legality as a matter of policy, in as much its risk-based audits are concerned.

The public must scrutinise to what extent the then Directors-General of DG INFSO had informed the Commissioner about the illegalities of the risk-based audits, and further to what extent the Commissioner had explicitly or tacitly approved the illegalities.

Since the public's confidence in the very integrity of the guardian of the Treaties is at stake, DG CNECT should not expect that its evasive tactics will allow it to escape scrutiny. The matter is simply too important.

I would therefore be obliged if DG CNECT would promptly provide me with the initial response for requests under (2), and (4) to (9).

Yours faithfully,

Mr. Tasos Ntetsikas

Communications Networks, Content and Technology

1 Attachment

Dear Sir,
 
Please find attached a letter concerning your confirmatory application for
access to documents (GestDem 2013-3375).
 
 
Kind regards,
 
Priscille Schiltz
European Commission
Secretariat General
Unit B5 "Transparency"
 
 
 

Communications Networks, Content and Technology

Dear Mr Ntetsikas,

 

With reference to your email of 20 November 2013 addressed to the European
Commission's Secretariat General (Access to Documents), please be informed
that you can expect a response to your request Gestdem 4573 by 23 December
2013 and a final follow-up response to your request Gestdem 3375 by the
end of November 2013.

 

The delay of our response is due to the number of documents you had
requested under the Gestdem files nr 3375 and 4573 for which we proposed
to you a fair solution that in turn was accepted by you and the time we
need to retrieve the documents from the archives and to analyse them.

 

With thanks in advance for your understanding,

 

Katleen Engelbosch

 

Katleen Engelbosch

Head of Unit

DG CONNECT

Unit CNECT/R4 - Compliance

 

Communications Networks, Content and Technology

3 Attachments

 

Dear Sir,

 

Please find attached document Ares(2013)3627659 regarding "Your
application for access to documents – Ref GestDem No 2013/3375 under
Regulation 1049/2011 regarding public access to European Parliament,
Council and Commission documents – final reply " sent by Mr Madelin Robert
on 03/12/2013.

 

Please note that due to the size of the annexes, we will send you them in
4 separate emails. Please don't hesitate to contact us in case you haven't
received one or more of these emails.

 

Kind regards.

 

 

[1]cid:image002.png@01CDE9CC.3B4F5EF0
European Commission
DG CONNECT - R4 Compliance
Secretariat

 

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

Please submit your questions for R4 to the following functional mailboxes:

CNECT R4 AUDIT

CNECT R4 INTERNAL CONTROL-REPORTING

CNECT R4 LEGAL-QUESTIONS

CNECT R4 (general questions)

 

 

References

Visible links

Communications Networks, Content and Technology

2 Attachments

 

Dear Sir,

 

Please find attached document Ares(2013)3627659 regarding "Your
application for access to documents – Ref GestDem No 2013/3375 under
Regulation 1049/2011 regarding public access to European Parliament,
Council and Commission documents – final reply " sent by Mr Madelin Robert
on 03/12/2013.

 

Please note that due to the size of the annexes, we will send you them in
4 separate emails. Please don't hesitate to contact us in case you haven't
received one or more of these emails.

 

Kind regards.

 

 

[1]cid:image002.png@01CDE9CC.3B4F5EF0
European Commission
DG CONNECT - R4 Compliance
Secretariat

 

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

Please submit your questions for R4 to the following functional mailboxes:

CNECT R4 AUDIT

CNECT R4 INTERNAL CONTROL-REPORTING

CNECT R4 LEGAL-QUESTIONS

CNECT R4 (general questions)

 

 

 

 

 

References

Visible links

Communications Networks, Content and Technology

2 Attachments

 

Dear Sir,

 

Please find attached document Ares(2013)3627659 regarding "Your
application for access to documents – Ref GestDem No 2013/3375 under
Regulation 1049/2011 regarding public access to European Parliament,
Council and Commission documents – final reply " sent by Mr Madelin Robert
on 03/12/2013.

 

Please note that due to the size of the annexes, we will send you them in
4 separate emails. Please don't hesitate to contact us in case you haven't
received one or more of these emails.

 

Kind regards.

 

 

[1]cid:image002.png@01CDE9CC.3B4F5EF0
European Commission
DG CONNECT - R4 Compliance
Secretariat

 

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Please submit your questions for R4 to the following functional mailboxes:

CNECT R4 AUDIT

CNECT R4 INTERNAL CONTROL-REPORTING

CNECT R4 LEGAL-QUESTIONS

CNECT R4 (general questions)

 

 

 

References

Visible links

Communications Networks, Content and Technology

2 Attachments

 

Dear Sir,

 

Please find attached document Ares(2013)3627659 regarding "Your
application for access to documents – Ref GestDem No 2013/3375 under
Regulation 1049/2011 regarding public access to European Parliament,
Council and Commission documents – final reply " sent by Mr Madelin Robert
on 03/12/2013.

 

Please note that due to the size of the annexes, we will send you them in
4 separate emails. Please don't hesitate to contact us in case you haven't
received one or more of these emails.

 

Kind regards.

 

[1]cid:image002.png@01CDE9CC.3B4F5EF0
European Commission
DG CONNECT - R4 Compliance
Secretariat

 

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

Please submit your questions for R4 to the following functional mailboxes:

CNECT R4 AUDIT

CNECT R4 INTERNAL CONTROL-REPORTING

CNECT R4 LEGAL-QUESTIONS

CNECT R4 (general questions)

 

 

References

Visible links

EC ARES NOREPLY, Communications Networks, Content and Technology

2 Attachments

Dear Sir,

Please find attached document Ares(2014)83477 regarding "Your application for access to documents – Ref GestDem No 2013/ 4573 under Regulation 1049/2011 regarding public access to European Parliament, Council and Commission documents" sent by Mr Madelin Robert on 16/01/2014.

Kind regards.

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