Supervisory Committee opinion on Dalli case

Waiting for an internal review by European Anti-Fraud Office of their handling of this request.

Dear European Anti-Fraud Office (OLAF),

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 Opinion produced by the OLAF Supervisory Committee on the case concerning Mr Dalli (submitted to the Director General of OLAF in December 2012).

- other documents by the OLAF Supervisory Committee regarding the investigation and other aspects of the case concerning Mr Dalli.

Yours faithfully,

Olivier Hoedeman

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Olivier Hoedeman left an annotation ()

On 15 March I received an email from OLAF about this request:

Dear Sir,

We refer to your e-mail dated 21.02.2013 in which you make a request for access to documents.

Your application is currently being handled. However, we will not be in a position to complete the handling of your application within the time limit of 15 working days.

Therefore, we have to extend the time limit with 15 working days in accordance with Article 7(3) of Regulation (EC) No 1049/2001 regarding public access to documents.

We apologise for this delay and for any inconvenience this may cause.

Yours sincerely,
Anke BACON on behalf of Mr Martin Wasmeier
European Commission
DG OLAF
Unit C.4- Legal advice
J-30 06/003
B-1049 Brussels/Belgium
+32 2 295 5776
anke.bacon@ec.europa.eu

Olivier Hoedeman left an annotation ()

I have on Monday 18 March written to OLAF:

Dear Mr Martin Wasmeier, thank you for your email. I would like to request clarification, as the reasons for the delay are not explained. I am at this stage not convinced that the delay is justified.

You refer to Article 7(3) of Regulation (EC) No 1049/2001, which says:
"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, the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given."

I had requested access to:
- the Opinion produced by the OLAF Supervisory Committee on the case concerning Mr Dalli (submitted to the Director General of OLAF in December 2012).
- other documents by the OLAF Supervisory Committee regarding the investigation and other aspects of the case concerning Mr Dalli.

My request, therefore, was not for "a very long document" nor for "a very large number of documents". Could you you clarify why the additional 15 working days are needed?

If the delay is due to the second part of the request ("other documents by the OLAF Supervisory Committee"), then I would request that you proceed with the first part of the request without further delay (releasing the Opinion produced by the OLAF Supervisory Committee on the case concerning Mr Dalli).

Thank you in advance,

Yours sincerely

Olivier Hoedeman
Corporate Europe Observatory (CEO)

Olivier Hoedeman left an annotation ()

On 20 March 2013 I received the following email from Paul Lachal Roberts (OLAF) <Paul-Lachal.ROBERTS@ec.europa.eu>

"Dear Mr. Hoedeman,

I'm replying on behalf of Mr. Wasmeier to your e mail below. The extension of time before responding to your request was to allow sufficient time for necessary consultation to take place. As you have requested access to documents of the Supervisory Committee and not OLAF itself this has entailed additional checking to ensure that the answer given is responsive to your request.

Yours sincerely

Paul Lachal Roberts
European Anti Fraud Office (OLAF)"

Olivier Hoedeman left an annotation ()

I have on 22 March 2013 written to OLAF to request a swift response:

Dear Paul Lachal Roberts,

thank you for the clarification, but it is not clear to me why forwarding my request to the Supervisory Committee would justify such a delay in responding. The delay you announce would mean that I have to wait 6-7 weeks from the moment of submitting the request before getting a first response. According to the rules, extending the deadline for responding would only be justified if the request would for "a very long document" nor for "a very large number of documents".

I would therefore suggest that you - in order to respect the EU's freedom of information regulation - treat my request with urgency and send me a response as soon as possible, well before the new deadline you announced.

Yours sincerely,

Olivier Hoedeman
Corporate Europe Observatory (CEO)

Olivier Hoedeman left an annotation ()

In a letter of 27 March 2013, Marek Kaduczak, Head of OLAF's Supervisory Committee Secretariat, sent a response by email, releasing six documents, but refusing access to the two key documents. On 18 April, we appealed this decision:

Dear Mr. Kaduczak,

thank you for your letter dated 27 March 2013, responding to our request for access to the following documents:
- the Opinion produced by the OLAF Supervisory Committee on the case concerning Mr Dalli
- other documents by the OLAF Supervisory Committee regarding the investigation and other aspects of the case concerning Mr Dalli

You conclude that the Opinion and the Report cannot be disclosed. We would herewith like to request a review of this decision.

You argue that the documents are covered by the exception within Article 4(2) of Regulation (EC) 1049/2001 regarding "protection if inspections and investigations". We do not believe that this exception applies to the two documents. Firstly, the OLAF investigation has been closed, as you mention. You then continue to refer to the investigations currently undertaken by the Maltese police and that the documents contain information that was sent to the Maltese authorities (as part of the OLAF report). If this would really be a problem, it could be solved by providing partial access to the two documents. Moreover, the Maltese authorities, as far as we are informed, are carrying out their own investigations, independently from the OLAF report. The two documents concern the OLAF investigation, not those of the Maltese police.

You also refer to the exception of Article 4(1)(b) of Regulation (EC) 1049/2001, which concerns the "protection of privacy and integrity of individuals". Many of the persons involved, in different capacities, in the OLAF investigation are already publicly known (Commission Dalli, Mr. Zammit, Mrs. Kimberley, representatives of Swedish Match, Giovanni Kessler, etc.) as a result of the media coverage and public debate about the case. As far as these persons concern, the exception referred to therefore is not a legitimate reason for denying access to the documents. For the rest, partial access could solve any further problem; i.e. for OLAF employees involved in the investigation, their names could be removed.

You argue that the issue of public interest in disclosure is not relevant, because "the applicable law does not allow for any disclosure". Regulation (EC) 1049/2001, the applicable law, does in fact include clear reference to exemptions being overruled by "overriding public interest in disclosure" (Article 4(2)). There is in this case a very clear overriding public interest in giving the public access to the documents. Firstly, there is the clear public interest in securing clarity around the circumstances that led to the resignation of Commissioner Dalli. The limited information provided by OLAF and the Commission so far has been confusing, contradictory and consistently raised more questions than it answers. MEPs, civil society groups, the media and a fast-growing number of concerned European citizens are deeply unhappy with the failure of OLAF and the Commission to clarify the basic facts about the Dalli lobby scandal. As a matter of avoiding the erosion of public trust in the EU institutions, as well as securing transparency and accountability, there is an overriding public interest in releasing details of the circumstances that led to the resignation of a Commissioner, in controversial and contested circumstances. Secondly, serious concerns have arisen about the role of OLAF and about its investigations into the Dalli case. A representative of Swedish Match, the company which submitted the complaint that led to the OLAF investigation, has recently admitted to have lied about fundamental aspects of the case. MEPs have accused OLAF of serious irregularities in the investigation of the Dalli case and some even called for the resignation of OLAF's director. There is a clear and overriding public interest in the release of documents that can throw light on these matters, including whether irregularities happened.

Regulation 1049/2001 states that “Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.” It is exactly the need for legitimacy and accountability as worded in this principle that is at stake in OLAF's (and the European Commission's) handling of the Dalli case. Indeed, these principles are doubly important in this case, which concerns the integrity of OLAF, the body charged with investigating breaches of integrity - corruption or serious misconduct within the European institutions. As long as OLAF's integrity remains under question in the public eye, the damage to public trust in the EU institutions is severe.

We would therefore like to request a review of the decision to reject access to the documents.

Yours sincerely,

Olivier Hoedeman
on behalf of Corporate Europe Observatory (CEO)