Dear Mr Weiss,
 
Below our reply to your email of 29 May, which follows the order and the numbering of points as provided in your email.
 
PART 1
 
YOUR REQUEST FOR CLARIFICATION OF 28.05.2013
 
Please find enclosed the English minutes of the Commission meeting on 10 April:
 
PART 2
 
PENDING REPLY TO QUESTION 2 OF 23 APRIL
 
b) The Commission has not carried out any investigation of the alleged fraud concerning the use of national subsidies by the Danish Institute for Human Rights (DHIR). As for the accounts of FRA, these are subject to an annual verification by the European Court of Auditors.
 
c) Please note that the grants awarded to DIHR (listed in your enquiry) were awarded in accordance with all the applicable EU regulations. In accordance with the applicable provisions of the Financial Regulation, public bodies applying for grants are exempt from the verification of financial capacity. This is reflected in the relevant provisions of calls for proposals, more specifically in the fact that financial documentation is normally not requested from public bodies.
 
YOUR REQUEST FOR CLARIFICATIONS OF 28.05.2013
 
  1. As indicated previously, the Commission has no legal grounds for intervening in a dispute between a staff member and an autonomous Agency. The competent authority to reply to complaints is the Appointing authority of the Agency, in this cases the Director or the Management Board, depending on the circumstances (see respectively Article 12 par. 6 e) and Article 15 par. 4 c) of the Council Regulation (n° 167/2007) establishing a European Union Agency for Fundamental Rights).
 
  1. Concerning your request for information on whether financial documentation was required from DIHR for the purpose of applying for grant ref. JUST/2012/PROG/AG/3720 - 117.966,25 EUR, please note that this was not the case as DIHR is classified as a public body and is therefore exempt from the obligation to provide such financial documentation (see section “financial capacity” on page 11 of the relevant call for proposals available here http://ec.europa.eu/justice/newsroom/files/just_2012_prog_ag_ad_en.pdf ). However, within  the framework of the relevant application form, DIHR declared to the Commission that it was not (at the moment of applying for the grant JUST/2012/PROG/AG/3720) in any of the situations that would exclude it from receiving EU funding, namely  that:  
  1. Regarding the Commission's awareness of the restriction applied in 2012 to IMR/DIHR by Denmark authorities in respect of accessing grants from Danish Public Budget (due to financial irregularities discovered in IMR / DIHR accounts), please note that the Commission (more specifically DG JUST, the service managing the grants awarded to DIHR listed in your enquiry) is currently aware of the situation, which had also been signalled to the Commission via the previous requests for access to documents (published on the asktheeu.org website) which you yourself quote in your enquiry. 
 
PARTS 3 & 4
 
YOUR REQUEST FOR CLARIFICATION OF 28.05.2013
 
As a holding reply, let me clarify the legal context of your request to access of documents.
 
The full Commission evaluation report is covered by one of the exceptions provided for in Article 4 (1) (b) of Regulation No 1049/2001 according to which access to documents is to be refused when disclosure would undermine the protection of privacy and integrity of the individual. 
 
The Court of Justice of the EU has ruled in case C-28/08P, Bavarian Lager   Case C-28/08 P Commission v Bavarian Lager, judgement of 29/06/2010, OJ C 79 29/03/2008. , that, when a request for public access concerns documents containing personal data, the provisions of Regulation 45/2001  becomes applicable in their entirety, including the provision requiring the recipient of personal data to establish the need for their disclosure and the provision which confers on the data subject the right to object any time, on compelling legitimate grounds relating to his or her particular situation, to the processing of data relating to him or her. In this respect, we would ask you to send us your postal address so that we can inform the data subject that in case of a agreements to grant access to the document you have requested it would not be published on the internet.
 
PART 5
 
A separate reply has been sent by OLAF on 17 June
 
PART 6
 
YOUR REQUEST FOR CLARIFICATION OF 28.05.2013
 
Information on the awarding of contracts and on internal conflict of interest rules should be requested directly from the Agency.
 
Yours sincerely,
 
Salla Saastamoinen
Head of Unit
 
 
European Commission
Directorate-General Justice
Unit C1 – Fundamental Rights and Rights of the Child
       
Rue Montoyer 59 (MO 05/66)
B-1049 Brussels, Belgium
Tel.  (32-2) 29 6.94.63
Fax  (32-2) 29 6.76.23
 
 
 
 
-----Original Message-----
From: Kurt Weiss [mailto:ask+xxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx]
Sent: Wednesday, May 29, 2013 8:50 AM
To: SG ACCES DOCUMENTS
Subject: access to information request - Full Evaluation Report by European Commision on extension of Mr Mortem Kjaerum term of office
 
     Dear Secretariat General (SG),
 
     Thank you for information and documents in pdf format provided
     under this link
     http://www.asktheeu.org/en/request/request_to_access_information_an
 
     Under the right of access to documents in the EU treaties, as
     developed in Regulation 1049/2001, I am requesting further
     documents following your reply of 28.05.2013 which contain the
     information mentioned below.
 
     As European Commission replies were placed in a different section,
     for a better understanding of these replies I assembled it in the
     following structure:
 
     - Reiteration of my question of 23 April 2013
 
     - Inserting your reply of 28.05.2013
 
     - My request for clarifications of 28.05.2013
     Please find below the 6 parts, combined as mentioned above. It is
     easier to understand. Please also note my Requests for
     clarifications inserted under each of the 6 parts.
 
     PART 1.
 
     QUESTION 1 of 23 April 2013.
 
     From the link you provided to me at the end of your letter I
     understand that the European Commission took already its decision
     to extend the FRA Director`s term of office so the Evaluation
     Report is finalized and necessarily was used for the well informed
     decision taken by European Commission. I request access to this
     Evaluation Report used by the EC Hierarchy mentioned in the link
     provided to me and accessible easier form here:
     http://ec.europa.eu/transparency/regdoc/... (Minutes of the 2041st
     meeting of the Commission held in Brussels
     (Berlaymont) on Wednesday 10 April 2013)
 
     Paragraph 7.2 of the Minutes read as follows:
 
     "Having noted the procedure followed as set out in point 2 of
     PERS(2013) 64/2, the Commission, on a proposal from Mr ŠEFČOVIČ, in
     agreement with the PRESIDENT and Ms REDING, decided to extend for
     three years with effect from 1 June 2013 the term of office of Mr
     Morten KJAERUM as Executive Director of the European Union Agency
     for Fundamental Rights, and asked Ms REDING to communicate this
     decision to the Agency’s management board. This decision would take
     effect immediately".
 
     My understanding is that in accordance to Article 12(6) (c) of
     Council Regulation 168/2007 the final decision is to be taken by
     Management Board of FRA and only then can take effect. I request
     information if the term of office of FRA Director was already
     extended with immediate effect by Mr BARROSO, Ms REDING and Mr Mr
     ŠEFČOVIČ (see above), or that paragraph is to be understand as
     Proposal or Endorsement by Mr BARROSO, Ms REDING and Mr Mr
     ŠEFČOVIČ?
 
     This is not fully understandable and clear taking view that in your
     letter is written that the FRA Management Board meeting for this
     purpose will take place on 22-24 May 2013.Therefore I request
     information if the par 7.2 of the Minutes is a DECISION or a
     PROPOSAL/recommendation?
 
     DG JUSTICE REPLY TO QUESTION 1 of 23 April 2013.
 
     “The Commission's decision of 10 April to propose for the extension
     of the term of office of the Director of FRA for three years took
     into account the evaluation report that assessed in particular:
     - the performance of the Director ;
     - the Agencies' duties and requirements in the coming year (see
     Annex I)
 
     We will reply separately to your request to receive a copy of the
     Career Development Report of the Director FRA.
 
     As regards the minutes of the Commission meeting on 10 April,
     please be informed that the French version (see Annex II) has
     authority over the English translation which you have referred to.
     The French original text reads as follows:
 
     "7.2. DG JUSTICE – PROLONGATION DU MANDAT DU DIRECTEUR EXECUTIF DE
     L'AGENCE DES DROITS FONDAMENTAUX DE L'UNION EUROPEENNE
 
     Ayant pris acte de la procédure suivie telle que reprise au point 2
     du document PERS(2013) 64/2, la Commission, sur proposition de M.
     ŠEFČOVIČ, en accord avec M. le PRESIDENT et Mme REDING, décide de
     proposer la prolongation, pour une durée de trois ans à compter du
     1er juin 2013, du mandat de M. Morten KJAERUM au poste de directeur
     exécutif de l'Agence des droits fondamentaux de l'Union européenne,
     et charge Mme REDING de communiquer cette proposition au conseil
     d'administration de l'agence.
 
     Cette décision prend effet immédiatement."
 
     MY REQUEST FOR CLARIFICATION of 28.05.2012
 
     If there is available an amended/corrected version of English
     minutes of the Commission meeting on 10 April, I request access to
     it.
 
     PART 2
 
     QUESTION 2 of 23 April 2013.
 
     In addition I request relevant information and documents related to
     point 3 of your letter JUST/Cl/JD/vf/l 109542s stored in asktheeu
     website.
 
     a) I particularly refer to the alleged misbehavior and conflict of
     interest raised in Judgment F-58/10
     http://curia.europa.eu/juris/document/do...
     in relation to FRA Director and the Investigator appointed by the
     FRA Director to conduct the respective administrative inquiry at
     FRA (see par. 77, 52, 57, 63, 64) and the persons identified as Mr
     M and Mr A in that Judgment (if the respective Judgment was part of
     evaluation process and if it was considered for the Evaluation
     Report drafted by EC).
 
     b) I also refer to Parliamentary Question E-002422/2012 accessible
     from here :
     http://www.europarl.europa.eu/sides/getD...
     and request information if European Commission scrutinized the
     mentioned alleged fraud happened under the tenure of the current
     Director of FRA when he served as Director at Danish Institute for
     Human Rights / IMR and whose mandate was extended or is to be
     extended (i.e. if this aspect was considered for the EC Evaluation
     Report). I request information and relevant documents if there was
     a checking by specialized EU bodies of the accounts of Danish
     Institute for Human Rights and of FRA and which the outcome was.
 
     c) From the Judgment F-58/10 I understand that Danish Institute for
     Human Rights (IMR in the Judgment) is a quite big contractor of FRA
     (only one contract is of 500 000 Euro - see p. 61). From the
     website asktheeu I found out that European Commission awarded
     several grants to Danish Institute for Human Rights amounted to
     millions of Euro, as follows:
     - Grant ref. JUST/2009/FRAC/AG/1279 - 994.775,16 EUR
     - Grant ref. JUST/2012/PROG/AG/3720 - 117.966,25 EUR
     - Grant ref. JUST/2011/PROG/AG/1909 - 221.813,66 EUR
     - Grant ref. JUST/2007/FRAC/AG/0019/1 - 425.019,00 EUR
     - Grant ref. JUST/2008/FRAC/AG/1226 - 498.915,32 EUR
     - Grant ref. JUST/2010/PROG/AG/534/D4 - 239.999,66 EUR
     In EC FTS system there are some more grants awarded to IMR by other
     departments of European Commission than DG Justice.
 
     I request relevant information and documents showing if the alleged
     fraud in accounts of IMR was settled and the grants and contracts
     awarded to IMR were concluded and awarded in accordance to
     provision of Regulation (EU, Euratom) No 966/2012 and Commission
     Delegated Regulation C(2012)7507, regulations which require that
     all bidders provide accurate financial documents in order to be
     admitted in competition for awarding grants (particularly I request
     information if this aspect was taken into account for the
     Evaluation Report on FRA director performed by EC and related
     decision to extend his term of office).
 
     DG JUSTICE REPLY TO QUESTION 2 of 23 April 2013.
 
     “Point 2
 
     Sub-point a): The case F-58/10 of the European Union Civil Service
     Tribunal concerns a conflict between an employee and FRA. In
     accordance with Article 15 par. 4 c) of the Regulation, the
     Director is responsible for all staff matters. Accordingly, the
     Commission did not take a position on this case.
     Sub-points b) and c): Your application is currently being handled.
     An extended time limit is needed as your application requires
     consulting different services. Therefore, we have to extend the
     time limit with 15 working days in accordance with Article 7(3) of
     Regulation (EC) N° 1049/2001 regarding public access to documents.
     The new time limit expires on 18 June.
 
     MY REQUEST FOR CLARIFICATION of 28.05.2012
 
     Please refer Sub-point a) to European Commission representatives in
     FRA Management Board. They must have further details.
     As to Sub-points b) and c):
     I noticed in asktheeu.org website that EC do not require financial
     documents from bidders when awarding grants.
     In this link
     http://www.asktheeu.org/en/request/grants_and_contracts_awarded_by
     is written that “DG Justice has received financial documents from
     DIHR only for grant ref. JUST/2009/FRAC/AG/1279”.
     I request relevant information if for the grant awarded by EC in
     2012 to IMR/DIHR (117.966,25 EUR) relevant financial documents were
     requested and if not, why.
     Also I request information if EC is aware about the restrictions
     applied in 2012 to IMR/DIHR by Denmark authorities in respect of
     accessing grants from Danish Public Budget (due to financial
     irregularities discovered in IMR / DIHR accounts). EU Financial
     regulations require that bidders provide updated balance sheet &
     financial docs. Was this the case for the grant awarded in 2012 to
     IMR/DIHR or the forms provided in 2009 were used for the purposes
     of grant awarding afferent to 2012? Did IMR/DIHR provide corrected
     forms containing the losses mentioned in the Internet (over 3 200
     000 euro posted in inexistent projects)?
 
     PARTS 3 & 4
 
     QUESTION 3 of 23 April 2013.
 
     “I also request relevant information and documents related to
     misbehavior and conflict of interest mentioned in European
     Parliament Budgetary Discharge Report P7_TA-PROV(2013)0162 under
     this link http://www.europarl.europa.eu/document/a...
     at par. 5, 6, 7, 8, and relevant information if European Commission
     considered it for the Evaluation Report on FRA Director extension
     of term of office and implicitly for the Final Decision taken by Mr
     BARROSO, Ms REDING and Mr Mr ŠEFČOVIČ.
 
     QUESTION 4 of 23 April 2013.
 
     I request information on how many cases were identified at FRA by
     European Commission with the occasion of drafting its Evaluation
     Report for the extension mandate of FRA Director? (I refer to cases
     before the EU Courts, EU Ombudsman and other EU institutions, if
     applicable, and to eventually internally ongoing cases at FRA
     level).
 
     Additionally I request information as to why these cases appear at
     FRA and if European Commission analyzed them when took its decision
     to extend the mandate of the FRA Director. I ask these information
     in the light of article 15 (1) second indent of Council Regulation
     168/2007 (i.e.director`s skills to manage its staff and conflict
     resolution). Who generate these cases at FRA and why?
 
     In the Judgment F-58/10 is mentioned that at FRA was identified an
     "intense atmosphere of fear". I request relevant information on who
     is responsible of that "intense atmosphere of fear" and if the fear
     come already to an end.
 
     This particular request is to be transmitted to the relevant
     hierarchy in charge with the Fundamental Rights in the EU. Is quite
     strange and of great public concern that at an EU Agency for
     Fundamental Rights was identified an "intense atmosphere of fear".
     Therefore I request to access relevant documents and information.
     Who created the fear? Who maintained it?
 
     DG JUSTICE REPLY TO QUESTIONS 3 AND 4
 
     “Points 3 & 4
 
     The Commission's decision to propose the extension of the term of
     office of the Director of FRA for three years took into account the
     evaluation report (see above)”.
 
     MY REQUEST FOR CLARIFICATION of 28.05.2012
 
     I request relevant information if European Commission was aware
     about the situation at FRA (several cases before different
     institutions and court).
     I also request to access the full EC Evaluation Report. In annex
     there is only an Annex with no relevant information. Additionally I
     request access to the Appraisal Report of FRA Director performance
     and information on responsible persons for drafting, endorsement
     and approval.
     I reiterate the question 4 and request more detailed replies. The
     invoked "intense atmosphere of fear" in the Judgment F-58/10 is
     very serious and of great concern for modern times as we live now
     and I would like to have details. The representatives of European
     Commission in FRA management Board could have more details. If
     necessary, please refer the question to them.
 
     PART 5.
 
     QUESTION 5 of 23 April 2013.
 
     Finally, I request relevant information and access to the related
     reports on the two particular cases mentioned in point 8 of
     European Parliament Budgetary Discharge Report P7_TA-PROV(2013)0162
     (i.e. Report of OLAF and Report of EU Ombudsman). If this part of
     my request is not within your competence I kindly ask to transmit
     it to competent authorities, possibility envisaged in the Code of
     Good Administrative Behavior applicable to EU staff and EU
     hierarchy.
 
     DG JUSTICE REPLY TO QUESTION 5
 
     Point 5
 
     Your application is currently being handled. An extended time limit
     is needed as your application requires consulting different
     services. Therefore, we have to extend the time limit with 15
     working days in accordance with Article 7(3) of Regulation (EC) N°
     1049/2001 regarding public access to documents. The new time limit
     expires on 18 June.
 
     The Commission is not in a position to respond to your request that
     concerns a case opened by the European Ombudsman against FRA.
 
     MY REQUEST FOR CLARIFICATION of 28.05.2012
     I take note about the new time limit which expires on 18 JUNE 2013.
 
     PART 6.
 
     QUESTION 6 of 23 April 2013.
 
     The letter you kindly sent me via asktheeu website is signed by Ms
     Salla Saastamoinen. I see in the FRA website
     http://fra.europa.eu/en/about-fra/struct... that Ms Salla
     Saastamoinen is also member of FRA Management Board.
 
     As there is no possibility to identify in FRA website via CV or
     Declaration of conflict of interest if Ms Salla Saastamoinen is the
     same person who signed the letter JUST/Cl/JD/vf/l 109542s stored in
     asktheu website, assuming that is the same person, I request
     relevant information if this letter was signed in both qualities of
     Ms Salla Saastamoinen : as Head of Unit at European Commission and
     in the same time as Member of FRA Management Board. I would
     appreciate relevant information as to the potential conflict of
     interest, because the EU Agencies are independent EU bodies.
 
     DG JUSTICE REPLY TO QUESTION 6
 
     Point 6
 
     Ms Salla Saastamoinen has been appointed as one of the two
     Commission representatives to the Management Board of the FRA in
     accordance with Commission decision C(2010) 5633 final (see annex
     III and annex IV).
 
     The reply of 3 May was sent to you as Head of the Fundamental
     rights and rights of the child unit of the Direction General for
     Justice of the European Commission, as indicated in the letterhead.
 
     MY REQUEST FOR CLARIFICATION of 28.05.2012
 
     On this question I have only one request for clarification related
     to a potential conflict of interest.
     Ms Salla Saastamoinen, having two roles in the same time (one at
     FRA and one at European Commission) and taking view that the FRA
     Director`s behavior (past at DIHR and current at FRA) is not fully
     clarified neither for European Parliament either for EU public,
     there is a legitimate concern as to the objectivity and
     impartiality of Ms Salla Saastamoinen and the other MB members,
     when they drafted and endorsed the Appraisal Report on FRA Director
     performance, conduct and abilities.
     As you can see in this link
     http://www.europarl.europa.eu/document/activities/cont/201301/20130125ATT59788/20130125ATT59788EN.pdf
     the European Parliament has concerns in relation to conflict of
     interest at FRA.
     The EP Question 28 reads:
     “Can the Agency confirm or refute allegations that it had awarded
     contracts to NGOs which are led by the members of the Management
     Board of the Agency? If there are such cases, have they been
     examined from the perspective of the Agency's Financial Rules
     and/or any other applicable rules as regards the possible conflict
     of interest?”
     In the reply given to EP by FRA there is no refuting of
     allegations. This is the context I request this additional
     clarifications.
     I request information and related documents in relation to EP
     Question 28. I rephrase it accordingly:
     a) Can the European Commission confirm or refute the allegations
     that FRA awarded contracts to NGOs which are led by the members of
     the Management Board of the Agency? Was this scrutinized with the
     occasion of extension of Director Mandate for further 3 years by
     Management Board at the Recommendation of European Commission?
     b) If there are such cases, have they been examined by European
     Commission representatives in FRA MB from the perspective of the
     Agency's Financial Rules and EU Financial Regulation (old FR and
     new FR adopted in 2012) as regards the possible conflict of
     interest?”
 
     Yours faithfully,
 
     Kurt Weiss
 
     -------------------------------------------------------------------
 
     This is a request for access to information under Article 15 of the
     TFEU and, where applicable, Regulation 1049/2001 which has been
     sent via the AsktheEU.org website.
 
     Please kindly use this email address for all replies to this
     request: ask+xxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
 
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     requests to Secretariat General (SG), please tell the AsktheEU.org
     team on email xxxx@xxxxxxxx.xxx
 
     This message and all replies from Secretariat General (SG) will be
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     http://www.asktheeu.org/en/help/officers
 
 
 
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