Letter to Mr Harris.pdf

Ref. Ares(2016)696078 - 09/02/2016

Directorate A : Investigations I
Chris HARRIS
57 Quai Rambaud
Director
69002 – Lyon

France

Via registered mail
E-mail:
ask+request-2517-
xxxxxxxx@xxxxxxxx.xxx
Brussels,
ARES/C.4/LL/cg(2016)656879

Subject: Your application for public access to documents
THOR(2016)1931

Dear Mr Harris,

We refer to your request for public access to documents, under Regulation (EC)
1049/2001, made in the e-mail dated 19 January 2016 and registered in OLAF on 20
January 2016 under reference numbers THOR(2016)1931.

1. Scope of the application
You have requested public access to documents containing the following information:
'Please provide case files for all investigations carried out by OLAF in 2015, where the
institution equals European Parliament'.
We understand your request as a request for access to documents from the case files of
all investigations on-going or closed in 2015 by OLAF on facts and allegations concerning
the European Parliament.

2. Preliminary remarks
OLAF wishes to clarify from the outset that OLAF is legally bound to treat all information it
obtains during its investigations as confidential and subject to professional secrecy, in
particular pursuant to Article 339 of the Treaty on the functioning of the European Union,
Article 10 of Regulation (EU, Euratom) No 883/2003 and Article 17 of the Staff Regulations.
OLAF z Rue Joseph II, 30 z B-1049 Brussels (Belgium) z Tel: +32 (0)2 299 11 11 z Web: http://ec.europa.eu/anti_fraud

Notwithstanding the foregoing, the purpose of Regulation (EC) No 1049/2001 is to give
access to documents to the public at large. Any document disclosed to an individual under
this Regulation then becomes automatically available to any other member of the public
whenever there is a subsequent request. Consequently, attention is drawn to you to the fact
that documents disclosed under this Regulation enter the public domain.
3. Assessment of the documents and relevant applicable exceptions
Having carefully considered your request, OLAF regrets to inform you that your application
cannot be granted, as disclosure is prevented by exceptions to the right of access laid down
in Article 4 of this Regulation.
The documents which you seek to obtain are part of OLAF investigations files and therefore
covered by the exception under of Article 4(2), third indent of Regulation 1049/2001 which
stipulates that the institutions shall refuse access to a document where disclosure would
undermine the protection of the purpose of inspections, investigations and audits, unless
there is an overriding public interest in disclosure.
4. General presumption of applicability of the protection of the purpose of
inspections, investigations and audits as referred to in Article 4(2) third indent of
the Regulation
4.1. The nature of requested documents
The requested documents form OLAF's case files of investigations carried out in 2015. This
means on-going investigations and/or investigations carried out and concluded by OLAF in
2015, for which final reports have been transmitted to competent authorities accompanied
by recommendations indicating possible further action in accordance with Article 11 of
Regulation 883/2013.
4.2. The general presumption of applicability of Article 4(2) third indent of Regulation
1049/2001
The Court of Justice has held that to determine the scope of the Regulation (EC) No
1049/2001, account must be taken of relevant sectoral rules governing the administrative
procedure under which the documents requested under Regulation (EC) No 1049/2001
were gathered 1.
In particular, the Court stated that if specific rules do not grant the party concerned by
the respective administrative procedure a right to access the requested documents (as it
is the case with regard to Regulation (EU, Euratom) No 883/2013 governing OLAF's
investigations2), there is a general presumption that Article 4(2) third indent of Regulation
(EC) No 1049/2001 applies when the same documents are requested under the said
Regulation3. Otherwise, if those interested parties – or any other person - were able to
obtain access on the basis of Regulation (EC) No 1049/2001, the system of the sectoral
rules would be unbalanced. Therefore, a general presumption has to be acknowledged
that disclosure of the documents within the administrative file, in principle, undermines
the protection of the objectives of investigation activities.


1 C-477/10 P, Agrofert Holding v Commission, par.50; C-139/07 P Commission v Technische Glaswerke
Ilmenau, par.55 ff.; C-28/08 p Commission v Bavarian Lager, par.40 ff.
2 See for example judgment in Case T-391/03 and T-70/04 Y Franchet and Byk v Commission; T-259/03
Nicolaou v Commission.
3 In particular C-139/07 P, Commission v Technische Glaswerke Ilmenau, but also C-477/10P, Agrofert.
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This implies that the disclosure of the requested documents can be refused without
carrying out a concrete, individual examination in order to assess whether their disclosure
may seriously undermine the protected interest, and that no partial access needs to be
considered (see below). In addition, the general presumption applies during the
investigation and also after the definitive closure of the investigation.4
Furthermore, the Court has also noted that according to recital 6 of Regulation (EU) No
1049/2001, documents relating to the institutions when acting in their legislative capacity
should be made accessible to the greatest possible extent. This is in contrast to
procedures relating to administrative functions specifically allocated to the institutions and
governed by their own administrative rules.
The documents to which you requested public access contain information gathered using
OLAF's investigative powers and the analysis and assessment of that information by OLAF.
With respect to these documents, OLAF is legally bound, pursuant to Article 339 of the
Treaty on the Functioning of the European Union, Article 10 of Regulation (EU, Euratom)
No 883/2013, and Article 17 of the Staff Regulations, to treat them as confidential and
subject to professional secrecy.
Moreover, the following provisions of Regulation 883/2013 regulate and restrict the use of
information in OLAF investigation files, before, during and after an OLAF investigation:
Article 3 (external investigations), Article 4 (internal investigations), 5 (opening of
investigations), 6 (access to information in database prior to the opening of an
investigation), 7 (investigations procedure), 8 (Duty to inform OLAF), 9 (procedural
guarantees), Article 10 (confidentiality and data protection); 11 (investigation report and
action to be taken following investigations), 12 (Exchange of information between OLAF
and the competent authorities of Member States), 13 (cooperation between OLAF and
Eurojust and Europol), 14 (cooperation with third countries and international
organisations), 15 (Supervisory Committee) and 16 (exchange of views with the
institutions), 17 (Director-General).
The protection of confidentiality of information in the legal framework applicable to OLAF
investigations aims, on the one hand, at safeguarding the successful conduct of an
investigation in the public interest and, on the other hand, at safeguarding the legitimate
interests of individuals, so that the information they provide is used only for the purposes
of the investigation.
OLAF’s investigations, as well as possible subsequent EU or national procedures, depend
upon the willingness of informants and witnesses to provide such information. Therefore,
these persons must be reassured that their statements will be kept confidential. With the
prospect of finding that their information, explanations or assumptions are disclosed to
the public, they might be inclined to censor the information they give or to hold back
sensitive information and that could seriously compromise the effectiveness of OLAF’s
investigative activities.5
For these reasons, the cooperation of those who hold relevant information requires the
increased protection of the information obtained, according to the conditions established
by the Court and by virtue of the protection of the purpose of the investigation (Article 4
(2) third indent of Regulation (EC) No 1049/2001). Furthermore, OLAF may communicate

4 T-623/13, UAHE vs. Commission, par. 72-79, and T-404/10P, Editions Odile Jacob v Commission, par. 93 and
128.
5 C-477/10P, Agrofert, 28 June 2012, par. 66
6 T-623/13, UAHC, par. 72–79.
7 Case C-404/10 P, Commission v Odile Jacob (EU:C:2012:393), paragraph 124, Joined Cases T-391/03 and T-
70/04, Franchet and Byk v Commission (EU:T:2006:190), paragraphs 108 to 113.
8 Case C-404/10 P, Commission v Odile Jacob (EU:C:2012:393), paragraph 133.
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with other EU or national authorities in the context of its investigations and also relies on
their cooperation.6
Hence, the above case-law is applicable by analogy to the OLAF legal framework and the
documents that form OLAF's investigation file come under a general presumption that
disclosure would be harmful to the investigation.
In addition, having regard to the nature of the information processed in the context of
OLAF investigations, that conclusion is correct irrespective of whether the request for
access concerns an investigation which is already closed or an ongoing investigation.7 The
publication of the sensitive information contained in the OLAF investigative files might
harm the protection of personal data and/or the integrity of persons involved in the
investigation, as sources of information, witnesses, private persons, officials of the
competent authorities and OLAF officials.
In view of the foregoing, the documents in OLAF's case files fall under the presumption of
non-accessibility as documents containing information collected during OLAF
investigations and subject to professional secrecy. Consequently, they are exempt from
disclosure to the public.
This conclusion is without prejudice to the application of other relevant exceptions referred
to in Article 4 of Regulation 1049/2001 to the requested documents. However, in the
present circumstances, OLAF has not considered it necessary to analyse the applicability
of those exceptions.
5. Partial Access
As regards partial access, it should be recalled that the general presumption referred to
above indicate that the documents covered by them do not fall within an obligation of
disclosure, in full or in part, of their content.8 There is therefore no need for OLAF to
examine the possibility of granting partial access to the requested documents in
accordance with Article 4(6) of Regulation (EC) No 1049/2001.
In any event, partial access is not possible, given that the information the documents
contain falls entirely under general presumption of applicability of Article 4(2), third indent
of Regulation 1049/2001 in the context of inspections and audits.
6. Overriding public interest in disclosure
The exceptions laid down in Article 4(2) and 4(3) of Regulation 1049/2001 apply unless
there is an overriding public interest in disclosure of the documents. For such an interest
to exist it, firstly, has to be a public interest and, secondly, it has to outweigh the
interest protected by the exception to the right of access.
OLAF understands the importance of transparency of the functioning of the EU
institutions and particularly of the European Commission. However, given the nature of
the anti-fraud investigations conducted by OLAF, and the confidential nature of
information collected, such as sources of information, content of case files and reputation
of natural persons, OLAF considers there are no elements that would show the existence
of an overriding public interest in disclosing the requested documents.
Please also note that the requested documents to a great extent involve the protection of
privacy and integrity of individuals (Article 4(1)(b) of Regulation (EC) No 1049/2001)
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where overriding public interest in disclosure is not applicable.
7. Confirmatory application
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting OLAF to review this position. Pursuant to Article 4 of
Commission Decision 2001/937/EC, ECSC, Euratom, such a confirmatory application should
be addressed within 15 working days upon receipt of this letter to the Director General of
OLAF.
Any confirmatory application to OLAF should be sent to the following address:
Mr Giovanni KESSLER
Director General OLAF
European Commission
Rue Joseph II, 30
B-1000 BRUXELLES
BELGIUM.

Your attention is drawn to the privacy statement below.

Yours sincerely,
Petra KNEUER

Privacy statement
Pursuant to Article 11 of Regulation (EC) 45/2001 on the protection of individuals with regard to the processing
of personal data by the Community institutions and bodies and on the free movement of such data, please be
informed that your personal data are stored in OLAF’s electronic and paper files concerning this matter for the
purposes of ensuring conformity with the requirements of Regulation 1049/2001.
The categories of your personal data being processed are identification and contact data (name, address, e-mail,
telephone, fax) and any other personal data provided by or to you in relation to your request. Officials within
OLAF and other Commission services responsible for dealing with requests for access to documents have access
to your personal data.
All documentation and communications concerning OLAF investigations are stored in the relevant OLAF
investigation files and are retained for a maximum of 15 years. Thus personal data contained in requests for
public access to documents concerning OLAF investigations are retained for a maximum of 15 years.
You have the right to access those data and to correct and complete them. On request and within three months
from its receipt, you may obtain information concerning your personal data which we have processed. Any such
request should be addressed to the Controller (xxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx).
You may lodge a complaint concerning the processing of your personal data with the European Data Protection
Supervisor (xxxx@xxxx.xxxxxx.xx) at any time.
The complete privacy statements for this and all other OLAF personal data processing operations are available at
http://ec.europa.eu/anti_fraud.

Electronically signed on 09/02/2016 13:53 (UTC+01) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563
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