Documents of the sanctions related to LIBOR, TIBOR and EURIBOR rigging

The request was refused by Competition.

Dear Competition (COMP),

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:

The actual legal document approved by the college of European Commissioners on December 4th where the Commission fines banks € 1.71 billion for participating in cartels in the interest rate derivatives industry. Unfortunately, the only information available is a mere press dossier* but no information has been published in EUR-LEX. I demand hereby the full and complete dossier and legal reasoning of the anti-trust sanction as well as the fines themselves.

* http://europa.eu/rapid/press-release_IP-...

Yours faithfully,

Miguel O

 

EUROPEAN COMMISSION
Competition DG

 

 

 

 

Brussels, 5th of December 2013

                              Acknowledgement of receipt

Subject : GESTDEM 2013/6124 - Miguel O - access to document request

Your reference:

Dear Sir,

Thank you for your e-mail  dated 2013-12-05. We hereby acknowledge receipt
of your application for access to documents, which was registered on
05/12/2013 under reference number Gestdem 2013/6124.

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
07/01/2013. In case this time limit needs to be extended, you will be
informed in due course.

Yours faithfully,

 

Dear Sir,
 
I refer to your request concerning access to the Commission decisions of 4
December 2013.
 
Currently, public versions of the decisions are not finalised yet. DG
Competition and the companies involved are still in the process of
establishing public versions of the decisions that do not contain any
business secrets or other confidential information. At this stage and
because of the discussions with the parties, a clear time-frame is
difficult to establish.
 
Once non-confidential versions of the decisions are established, they will
be published and available online. We invite you to regularly check the
relevant section of DG Competition's website
([1]http://ec.europa.eu/competition/cartels/...) where the
non-confidential versions of the decisions will be made available as soon
as they are finalised.
 
We hope this has responded to your request.
 
Yours sincerely,
 
Thomas Köster
European Commission
DG Competition
 
 

References

Visible links
1. http://ec.europa.eu/competition/cartels/...

Dear Mr. Köster,

Thank you for your response of 19 December to my request of 5 December for documents relating to the sanctions imposed on banks for EURIBOR, LIBOR and TIBOR rigging. The original request followed by your response can be found here: http://www.asktheeu.org/en/request/docum...

I understand from your reply that you are denying me access to the document that I requested, namely a copy or copies of the actual legal document(s) approved by the college of European Commissioners on December 4th whereby the Commission took the formal decision to fine banks € 1.71 billion for participating in cartels in the interest rate derivatives industry.

Therefore, I'm proceeding to present a Confirmatory Application and hereby request that you review your decision to deny me access to I would ask that you take into account the following grounds for this Confirmatory Application:

1. Under Regulation 1049/2001 your obligation is either to provide me with a copy of the requested document or to deny me access. If full or partial access is denied, that denial must be grounded in one of the exceptions set out in Article 4 of Regulation 1049 and should be motivated. This you have not done, having cited no legal basis for the refusal and merely implying that the document is confidential as you state that “Once non-confidential versions of the decisions are established, they will be published and available online.” I hereby request that you motivate the refusal to provide information in the manner required by Regulation 1049.

2. You state in your response that “DG Competition and the companies involved are still in the process of establishing public versions of the decisions that do not contain any business secrets or other confidential information.” In other words, that you are preparing new versions of the documents. These new documents are not the documents which I requested, but rather the original documents adopted by the Commission which your letter implies do exist. The right of access to documents held by the Institutions of the European Union is a fundamental right enshrined in the treaties, and it is not acceptable for the Commission to provide parallel versions of documents for the public while denying access to the original documents.

3. You state that you are preparing public versions of the decisions expunging the business secrets and confidential information. I note that Regulation 1049 anticipates that documents held by the institutions of the EU may contain such confidential information and provides for original documents to be provided with the information which would cause harm to commercial interests removed. Specifically, Article 4.2 states that “The institutions shall refuse access to a document where disclosure would undermine the protection of:

- commercial interests of a natural or legal person... unless there is an overriding public interest in disclosure.” To apply such an exception you would need to demonstrate how the exception applies (the harm caused) and to demonstrate that you have taken into account the public interest in accessing this information.

I note here that there is a particularly strong public interest in this case in access to these documents given the way in which the public in general was affected by the behaviour of the banks. As Commissioner Almunia has been quoted in the Commission’s press release as saying : “What is shocking about the LIBOR and EURIBOR scandals is not only the manipulation of benchmarks, which is being tackled by financial regulators worldwide, but also the collusion between banks who are supposed to be competing with each other. … Healthy competition and transparency are crucial for financial markets to work
properly, at the service of the real economy rather than the interests of a few."

It is clear from this statement that there is a public interest in understanding how the supposed commercial interests of the banks – the core of this concept of healthy competition – has been subverted in this case. Given that this very serious problem arose through a lack of sufficient transparency, now is the moment to rectify this.

3. Should any of the information contained in this (these) document(s) be shown to be subject to one of the exceptions in Regulation 1049/2001, then the remainder of the document(s) should be provided. Article 4.6 of the Regulation makes clear that “If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.” From your statement that the Commission is currently editing the documents for public release, this implies that they do contain information which can be made public and this should be done.

In addition to these arguments in favour of access to the requested documents, I note that there is a temporal concern. The time limit for responding to an access to documents request is established by Regulation 1049 as 15 working days. This may, be extended by a further 15 working days but only in “exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents ... provided that the applicant is notified in advance and that detailed reasons are given.”

Your response stating that “At this stage and because of the discussions with the parties, a clear time-frame is difficult to establish” is not in line with the requirements of Regulation 1049 with respect to time frames, and is not a sufficient response and I request that you provide me with a concrete time frame as to when you will answer my request and – if you
are going to apply an extension – I request that you provide me with the detailed reasons for this in line with you legal obligations to do so.

As a final observation, I note that advising a requester to “regularly check” the website when a formal request has been submitted for a document which already exists, is both a response which is not in line with Regulation 1049 and also does not appear to be good administrative practice as it is not taking seriously the fundamental rights of European citizens.

In sum, I maintain my request to access the original, unedited documents related to the EURIBOR, LIBOR, TIBOR rigging sanctions. I argue that there is a strong and overriding public interest in having access to the full information in order both to understand how these “illegal cartels” (in the words of the Commission) occurred and how the EU has evaluated the
illegal behaviour in order to arrive at the sanction which has been imposed.

I look forward to your response within the timeframes established by Regulation 1049 (by 30 December for my request of 5 December) and to receiving the requested document(s).

Best regards,

Miguel Ongil

Competition

2 Attachments

Dear Mr Ongil,
 
Please find attached a letter regarding your access to document request of
5.12.2013.
 
Kind regards
 
Michèle Van Kerkhoven
Case Assistant
 
European Commission
DG Competition
Cartels G-2
 
MADO 05/060
B-1049 Brussels/Belgium
00 32 (0)2 29 51510
[1][email address]
 
 
 
 

References

Visible links
1. mailto:[email address]

Competition

2 Attachments

Dear Mr Ongil,
 
Please find attached the reply to the above mentioned request.
 
Kind regards
 
Michèle Van Kerkhoven
Case Assistant
 
European Commission
DG Competition
Cartels G-2
 
MADO 05/060
B-1049 Brussels/Belgium
00 32 (0)2 29 51510
[1][email address]
 
 
 
 

References

Visible links
1. mailto:[email address]