Transitional allowances ECA members
Dear Madam, Sir
Council Regulation 2016/300 of 29 February 2016 determining the emoluments of EU high-level public office holders applies inter alia to the President and members of the Court of Auditors.
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:
- A list of former Presidents and Members of the Court of Auditors to which a transitional allowance has been paid since 1 January 2018
- To the extent applicable, the period during which a monthly transitional allowance has been paid to each former President and Member of the Court of Auditors
- The total sum of monthly transitional allowances that has been paid to each former President and Member of the Court of Auditors
Sincerely
Peter Teffer
Dear Mr Teffer,
Thank you for contacting again the European Court of Auditors (ECA).
We acknowledge receipt of your message of 31 January 2023. Your request is
currently under treatment and we will provide you with a reply in due
course.
Kind regards
ECA-INFO team
[1]https://www.eca.europa.eu/PublishingImag...
[2]https://www.eca.europa.eu/PublishingImag... ECA-INFO
Information Desk
12, rue Alcide
De Gasperi -
L-1615
Luxembourg
[3]eca.europa.eu
[4]https://www.eca.europa.eu/PublishingImag... Please
consider the environment before printing this email
[5]https://www.eca.europa.eu/PublishingImag...
Dear Mr Teffer,
Your request of 31 January 2023 is currently under treatment. Due to
consultation processes, we have to extend the initial 15 working days
deadline, by another 15 working days, as per Article 6.4 of the ECA
Decision N°12-2005 regarding public access to ECA documents.
We will provide you with a reply in due course.
Kind regards
ECA-INFO team
[1]https://www.eca.europa.eu/PublishingImag...
[2]https://www.eca.europa.eu/PublishingImag... ECA-INFO
Information Desk
12, rue Alcide
De Gasperi -
L-1615
Luxembourg
[3]eca.europa.eu
[4]https://www.eca.europa.eu/PublishingImag... Please
consider the environment before printing this email
[5]https://www.eca.europa.eu/PublishingImag...
Dear Mr Teffer,
Your request of 31 January 2023 is still under treatment. Due to the
ongoing interinstitutional consultation processes, we have to extend again
the deadline previously indicated by another 15 working days.
We will provide you with a reply in due course.
Kind regards
ECA-INFO team
[1]https://www.eca.europa.eu/PublishingImag...
[2]https://www.eca.europa.eu/PublishingImag... ECA-INFO
Information Desk
12, rue Alcide
De Gasperi -
L-1615
Luxembourg
[3]eca.europa.eu
[4]https://www.eca.europa.eu/PublishingImag... Please
consider the environment before printing this email
[5]https://www.eca.europa.eu/PublishingImag...
Dear Madam, Sir,
Can you explain why you believe that article 6.4 of the ECA decision no 12-2005 allows for a second extension by another 15 working days? I should also point out that this article seems to be written with the purpose of dealing with requests for "a very long document or to a very large number of documents". Is that the case here?
Sincerely
Peter Teffer
Dear Mr Teffer,
Thank you for contacting the European Court of Auditors (ECA).
Your request has been treated according to the rules on public access to
ECA documents, which are set out in [1]Decision No 12/2005 of the Court of
Auditors regarding public access to Court documents (as amended by ECA
Decision No 14/2009, consolidated version published in OJ C 67/1 of
20.03.2009) (altogether, "the Court's Decision on access to documents").
Please note that Regulation 1049/2001 regarding public access to European
Parliament, Council and Commission documents is not applicable to our
institution.
Following careful analysis of your request, we are able to provide you in
attachment of this e-mail with the list of former ECA Members that
received a transitional allowance between 1 January 2018 and 31 December
2022, the number of months during which they received this allowance and
the total amount paid per year under the budget line for the transitional
allowance (from 2018 to 2022).
In your request for access to documents, you refer in this context to
Article 10 of [2]Council Regulation (EU) 2016/300 of 29 February 2016
determining the emoluments of EU high-level public office holders.
However, we would like to underline that Article 1(2) of this Regulation
states that the Regulation shall apply to all public office holders who
are appointed or reappointed with effect after 4 March 2016. For all other
Members, [3]Council Regulation (EEC, Euratom, ECSC) No 2290/77 of 18
October 1977 determining the emoluments of the members of the Court of
Auditors (consolidated version, as amended by Council Regulation (EC,
Euratom) No 1293/2004 of 30 April 2004) was still applicable. Please note
that under the previous Regulation, the transitional allowance was paid in
principle for a period of three years, whereas under the new Regulation,
it is paid for period between six months and two years, depending on the
length of the period of service.
We are not in a position to provide the amounts that were actually paid
per individual former ECA Member/President, in order to avoid any indirect
disclosure of personal data.
According to Article 4.1 (b) of the Court’s Decision on access to
documents, “the ECA shall refuse access to a document where disclosure
would undermine the protection of privacy and integrity of the individual,
in particular in accordance with Community legislation regarding the
protection of personal data”.
Article 3(1) of [4]EU Regulation 2018/1725 applicable to the EU
institutions (“the EU Data protection regulation”), provides that personal
data ‘means any information relating to an identified or identifiable
natural person […]’.
The transitional allowance is determined based on factors such as, among
others, the Member’s period of service and age. The amounts actually paid
to each Member depend on personal factors, in particular their family
situation (e.g. number of dependent children or marital status). Thus, the
entitlement to the transitional allowance holds several elements which are
personal data.
In this respect, Article 9 of the EU Data protection regulation requires a
requestor to demonstrate the necessity of the transfer of personal data
for the performance of a task carried out in the public interest or for a
specific purpose in the public interest. Furthermore, once this need is
demonstrated in the second case (for a specific purpose in the public
interest), the requested institution needs to establish, where there is no
reason to assume that the legitimate interests of the data subject might
be prejudiced, that it is proportionate to transmit the personal data for
that specific purpose after having demonstrably weighed the various
competing interests.
We note that you have neither demonstrated the existence of such a public
interest to have access to such personal data, nor the necessity of its
the transmission, in line with the above mentioned provision.
Therefore, we regret to inform you that, in accordance with Article 4.1
(b) of the Court’s Decision on access to documents, we cannot provide you
access to the amounts actually paid to each former ECA Member/President
listed in the table, as this information would allow indirect disclosure
of personal data for which you have not substantiated a need of access for
a purpose in the public interest.
Furthermore, if we disclose the actual amounts paid to former Members of
the ECA, it may be possible to calculate the amount of remuneration
received after they ceased to hold office, which the ECA is required to
keep confidential in line with Article 10(4) second subparagraph of
Council Regulation (EU) 2016/300 and Article 8(4) of Council Regulation
1293/2004.
Please be informed that, under Article 7 of Decision 12/2005, you can ask
the ECA to reconsider its position within 15 working days of receiving
this reply. Your request for reconsideration should be submitted to the
President of the ECA.
Kind regards
ECA-INFO team
[5]https://www.eca.europa.eu/PublishingImag...
[6]https://www.eca.europa.eu/PublishingImag... ECA-INFO
Information Desk
12, rue Alcide
De Gasperi -
L-1615
Luxembourg
[7]eca.europa.eu
[8]https://www.eca.europa.eu/PublishingImag... Please
consider the environment before printing this email
[9]https://www.eca.europa.eu/PublishingImag...
Dear Madam, Sir,
I am filing a confirmatory application regarding my access to documents request which was registered on 31 January 2023.
I thank the ECA for granting the list of former ECA Members that received a transitional allowance between 1 January 2018 and 31 December 2022, the number of months during which they received this allowance and the total amount paid per year under the budget line for the transitional allowance (from 2018 to 2022).
But the ECA has refused to reveal the amounts that were actually paid per individual former ECA Member/President, "in order to avoid any indirect disclosure of personal data".
The ECA argues that disclosure of documents with that information would undermine the protection of privacy and the integrity of the individual.
It argues that because the allowance "is determined based on factors such as, among others, the Member’s period of service and age", and that the "amounts actually paid to each Member depend on personal factors, in particular their family situation (e.g. number of dependent children or marital status)", the entitlement to the transitional allowance "holds several elements which are personal data".
But this is a fallacy.
While the factors which determine for each former Member how much transitional allowance they should receive, may indeed individually be personal data, this does not mean that the total sum of transitional allowances paid to each former Member automatically also constitutes personal data.
I am not requesting for each Member their age, number of children, or marital status. I am merely asking for the total sum they received.
The ECA is suggesting that if the ECA were to reveal the total sum of transitional allowances for any former Member, anyone would be able to deduce from that figure personal data like age and number of children.
But that is untrue. The ECA has revealed there are at least five factors (it has given examples of four factors, and explictly says "among others" and "e.g.", which means that there are more factors than the ones listed, so at least five).
If a figure is determined by at least five factors, and all you know is the final outcome, there is no way you can deduce those five factors by the total sum alone.
Allow me to illustrate with a simple example: I tell you that the result of a multiplication of two factors is 16. You have no way of knowing if I arrive at 16 by multiplying 1x16, or 2x8, or 4x4. Even in this case with just two factors, there is no way to know the individual factors which led to the outcome - let alone if there had been five factors.
Nevertheless, if the ECA persists on arguing that the total sum each former Member of the ECA has received in transitional allowance are personal data, allow me to demonstrate the necessity of the transmission of this data for a specific purpose in the public interest.
The monthly transitional allowance for former Members of the ECA has a specific purpose, as explained in recital 6 of Council Regulation (EU) 2016/300. "[T]he purpose of the transitional allowance for public office holders is to ensure, for a limited period directly following their term of office, a certain level of financial security until their next paid employment with a similar level of remuneration, or other source of income such as their pension."
The public, more specifically the citizens of the EU, have an interest that the money from the EU budget is properly spent. It is in their interest that an investigative journalist like myself can assess whether the period during which former EU public office holders receive transitional allowances is appropriate and not continued when these former public office holders have new "paid employment with a similar level of remuneration".
It has happened in the past that former public office holders did not fully comply with the applicable rules, which is why it is legitimate for journalists to check if former Members of the ECA have complied.
A study commissioned by the European Parliament (Transitional allowances for former EU office holders – too few conditions?, 2017) noted the monitoring in place was not perfect: "Experience with the implementation of the regulatory framework suggests room for improvement with regard to monitoring, since there have been issues over the accuracy of information provided by former office holders." This suggests that press investigations into proper monitoring might benefit society.
I hope this sufficiently demonstrates why it is necessary for a specific purpose in the public interest that the requested personal data is provided.
Sincerely
Peter Teffer
Dear Mr Teffer,
We acknowledge receipt of your request for reconsideration that you sent
by e-mail on 20 March 2023. Your request is currently under treatment and
we will provide you with a reply in due course.
Kind regards
ECA-INFO team
ECA-INFO
Information Desk
12, rue Alcide De Gasperi - L-1615 Luxembourg
[1]eca.europa.eu
Please consider the environment before printing this email
Dear Mr Treffer,
By email of 20 March 2023, you asked the Court of Auditors (ECA) to
reconsider its position not to disclose to you the amounts of the
transitional allowance paid to each former Member and President of the ECA
since 1 January 2018. In accordance with Article 8(1) of Decision No
12/2005 of the Court of Auditors regarding public access to Court
documents, your request for reconsideration has been submitted to the
President for decision.
In your request for reconsideration, you argue that since the total amount
paid to an individual former Member is based on several factors,
disclosing those amounts would not reveal personal data such as the family
situation of the person concerned. Furthermore, you consider that it is
necessary to provide you with the requested information for a specific
purpose in the public interest, i.e. the interest of EU citizens that
money from the EU budget is properly spent. In your view, this entails
that you, as an investigative journalist, should be able to check whether
“paid employment with a similar level of remuneration” has been properly
taken into account for determining the amounts paid to former Members of
the institution.
We regret to inform you that your request for reconsideration is rejected.
First, we would like to recall that in reply to your original request for
access to documents, the ECA already provided, on 17 March 2023, a list of
former Members who received a transitional allowance between 1 January
2018 and 31 December 2022 and the number of months, for each year, during
which the allowance was paid to them. Thus, the first two requests made in
your email of 31 January 2023 have been answered favourably. Please note,
with respect to the data provided, that the entitlement to the
transitional allowance (managed by the Commission’s Paymaster Office
“PMO”) ceases when the former Member starts drawing his or her pension.
With regard to your third request (concerning the total sum of the monthly
transitional allowances paid to each former President and Member of the
Court of Auditors), you were provided with aggregate data, specifying the
amounts of transitional allowance paid in total (to all the former Members
concerned together) in each of the four years in question.
Any further information, referring to the specific amounts paid to
individual former Members, would be based on their personal situation, in
particular their entitlements to family allowances, and, possibly,
remuneration received for a new gainful activity, which is deducted, under
certain conditions, from the transitional allowance (see Article 8(3) and
(5) of Regulation 2290/77 determining the emoluments of the members of the
ECA and Article 10(3) and (5) of Regulation 2016/300 determining the
emoluments of EU high-level public office holders, referred to in our
email of 17 March 2023; in those cases, former Members only receive a
partial transitional allowance).
Such information as well as the actual amount paid to each individual
former ECA Member constitute personal data in the meaning of Article 3(1)
of Regulation 2018/1725 (the EU Data Protection Regulation, also quoted in
our email of 17 March 2023). In accordance with Article 4(1)(b) and (8) of
Decision 12/2005 of the ECA regarding public access to Court documents and
Article 9(1)(b) of Regulation 2018/1725, such data may not be disclosed
unless there is an overriding public interest.
In this respect, it must be noted that enabling you to control whether
“paid employment with a similar level of remuneration” of former ECA
Members has been duly taken into account for establishing the amounts of
their transitional allowance is not a specific purpose in the public
interest which would require transmitting the requested data to you. On
the contrary, providing this information would constitute an infringement
of Article 8(4) of Regulation 2290/77 and Article 19(4) of Regulation
2016/300, respectively, according to which declarations by former Members
of their remuneration received in the context of a new gainful activity
“shall be treated as confidential” and “shall not be communicated to third
persons [third parties]”. If the ECA discloses the actual amounts paid to
former Members of the ECA, it may be possible to calculate the amount of
remuneration received after they ceased to hold office, which the ECA is
required to keep confidential in accordance with the aforementioned
articles. There can be no public interest in infringing those provisions
of EU law.
Of course, the ECA fully agrees that it is in the public interest that
funds from the EU budget are spent in accordance with the applicable legal
provisions as well as with the principle of sound financial management.
For this purpose, the payment of transitional allowances is, as any other
payment from the EU budget, subject to internal and external control
mechanisms. However, these mechanisms do not include or allow for the
transmission of personal and confidential data to third parties, in
violation of the above cited provisions of EU law.
Please note that you have the possibility to file an appeal against the
rejection of your request for reconsideration before the General Court of
the EU, within two months from the notification of this reply.
If you consider that there has been maladministration in the treatment of
your request by the ECA, you may lodge a complaint to the European
Ombudsman. Your complaint must be lodged within two years of the date when
you became aware of the facts. An online complaint form is available on
the European Ombudsman Website. Lodging such a complaint does not have the
effect of suspending the time-limit for court proceedings.
Kind regards
ECA-INFO team
[1]https://www.eca.europa.eu/PublishingImag...
[2]https://www.eca.europa.eu/PublishingImag... ECA-INFO
Information Desk
12, rue Alcide
De Gasperi -
L-1615
Luxembourg
[3]eca.europa.eu
[4]https://www.eca.europa.eu/PublishingImag... Please
consider the environment before printing this email
[5]https://www.eca.europa.eu/PublishingImag...