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GetDem 2014/330, Eurostat consultations with document authors, European Union Law on the publication of annual accounts

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Dear Eurostat (ESTAT),

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:

This application concerns the correspondence of Eurostat with the document authors of the application of the undersigned GetDem 2014/330.

1. REFUSAL OF THE TWO EUROSTAT CONTRACTORS TO DISCLOSE ANNUAL ACCOUNTS

The Eurostat initial response to GestDem 2014/330 reads (top of page 2) http://www.asktheeu.org/en/request/1147/...

‘The authors of the documents have objected to disclosure of the documents that they sent to the Commission and have motivated their position as follows:

The requested information has a commercially extremely sensitive nature and its disclosure to other economic operators or to the commercial market would undermine the protection of the commercial interests of the two legal persons that submitted it, in accordance with Article 4(2) first indent of Regulation (EC) No 104912001. ’

2. MANIFEST INCONSISTENCY OF THE POSITION OF THE TWO EUROSTAT CONTRACTORS

It is submitted that this is a rather unexpected position, since the annual accounts at issue concern two companies that are fully-owned subsidiaries of public companies.

It is impossible to understand how the management of the public companies would have endorsed the publication in the annual accounts of their subsidiaries of ‘commercially extremely sensitive’ information. Even if such information would have somehow slipped the attention of the management, it is impossible to believe that such kind of a ‘slip’ has happened in 2 consecutive years.

In the same vein, it is impossible to understand how the management of the two Eurostat contractors had been so negligent to include in the statutory annual accounts ‘commercially extremely sensitive’ information, since such kind of information is by Law accessible to the public.

One wonders what opinion the shareholders of the public companies will form when they find out that subsidiary companies include in their statutory annual accounts ‘commercially extremely sensitive’ information, and then on those grounds the subsidiary companies want to keep their accounts secret from the public.

3. EUROPEAN UNION LAW

The refusals of the two Eurostat contractors flies in the face of the European Union Law on the publications of annual accounts and the case-law of the Court of Justice. The Preliminary Ruling of the Court of Justice in the Case C-418/11, Texdata Software, in particular paragraph 54 is highly pertinent:

‘The Court has already had occasion to rule that the fact that the annual accounts must give a true and fair view of the assets and liabilities, financial position and profit or loss of the company concerned constitutes a fundamental principle (see Case C-234/94 Tomberger [1996] ECR I-3133, paragraph 17, rectified by order of 10 July 1997; Case C-306/99 BIAO [2003] ECR I-1, paragraph 72; and Berlusconi and Others, paragraph 54). The disclosure of those annual accounts is primarily designed to provide information for third parties who do not know or cannot obtain sufficient knowledge of the company’s accounting and financial situation (Case C-97/96 Daihatsu Deutschland [1997] ECR I-6843, paragraph 22). ’

4. PRELIMINARY CONCLUSIONS

Insofar it can be deduced from the Eurostat initial response, it is patently obvious that the position of the two contractors is contrary to the Union Law as regards the full public disclosure of the annual accounts.

This gives rise to concerns about what is behind the total refusal of the two contractors, and to what extent the true financial situation of the two contractors was taken into consideration by Eurostat in the award of the two contracts.

5. REQUEST FOR DOCUMENTS

I respectfully submit an application for the full release of the following documents that Eurostat exchanged in GestDem 2014/330 with the two contractors listed in the contract award notice 2013/S 112-190358 :

1. The letter Eurostat addressed to the first contractor
2. The response of the first contractor
3. The letter Eurostat addressed to the second contractor
4. The response of the second contractor

It is submitted that Eurostat is obliged to expunge from the above four documents the parts with the personal data and fully grant access to the remaining of the documents.

6. OVERRIDING PUBLIC INTEREST

The two contractors ought to be aware: (i) of the policy of the Commission about Financial Transparency; (ii) the Union Law on publications of annual accounts.

Yet for their own reasons, the two Eurostat contractors believe that statutory annual accounts are to remain totally secret from the public.

It is submitted that such kind of an attitude is completely incompatible with the Law, as well as the accountability and transparency of the European Institutions.

Consequently, on the grounds of scrutinising the diligence of Eurostat in the checking of the annual accounts of economic operators with which Eurostat concludes multi-million contracts for services, the full disclosure of the documents at issue is the subject of an overriding public interest.

Yours faithfully,

Zois Zervos

Dear Sir,

Thank you for your email dated 03/03/2014.

We hereby acknowledge receipt of your application for access to documents, which was registered on 03/03/2014 under reference number GestDem 2014/1233.

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 24/03/2014. In case this time limit needs to be extended, you will be informed in due course.

Yours faithfully,

Carlos Remis
SG.B.4.
Transparence.
Berl. 05/329.

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3 Attachments

Dear Mr Zervos,

Further to your request, please find enclosed a copy of the annual accounts of the first contractor, to which you have been granted access, and the correspondence between Eurostat and the second contractor.

Kind regards,

Louise Corselli-Nordblad
Communication unit Eurostat

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