Request to access information and documents

Esperando una revisión interna por parte de Justicia y Consumidores de cómo han respondido a esta solicitud.

Dear Justice (JUST),

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:

- All and any documents setting out the steps taken by the European Commission`s representatives in Governing Board of the EU Agency for Fundamental Rights in response to the Judgment of the European Union Civil Service Tribunal in Case: F-58/10.

- All and any documents related to disciplinary actions undertaken against alleged perpetrators (Mr M. and Mr A.) and management team of FRA in Case: F-58/10, identifiable under this link
http://curia.europa.eu/juris/document/do...

- All and any documents and information related to conflict of interest identified in paragraph 61 of the judgment T-58/10, paragraph which read as follows: “ However, it is not disputed that the IMR, of which the investigator was Chairman on the date he was appointed to conduct the inquiry, had concluded with the FRA a contract worth nearly EUR 500 000 for the submission of information to it concerning discrimination based on sexual orientation, between 2007 and 2008, in Denmark. Furthermore, when the investigator conducted the inquiry, that contract was capable of being renewed repeatedly in the future, as confirmed by the FRA during the hearing”. Any documents related to the position of European Commission`s representatives in Governing Board of the EU Agency for Fundamental Rights vis-à-vis conflict of interest identified. (http://fra.europa.eu/en/about-fra/struct... )

Yours faithfully,

Kurt Weiss

Dear Justice (JUST),

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Justice (JUST)'s handling of my FOI request 'Request to access information and documents'.

Confirmatory application

In accordance to relevant provisions of law, I hereby lodge the present Confirmatory application and request that my request to access information and documents is reviewed.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.asktheeu.org/request/request_...

Yours faithfully,

Kurt Weiss

Justicia y Consumidores

4 Adjuntos

Dear Mr Weiss,

Further to your correspondence of 23 April, 10 May and of 21 May (References: GESTDEM 2013/2193, GESTDEM 2013/2526), and our first reply on 3 May (GESTDEM 2013/1954), please find below to your requests for access to documents:

GESTDEM 2013/2193

The case F-58/10 of the European Union Civil Service Tribunal concerns a conflict between an employee and the EU Fundamental Rights Agency (hereafter "FRA"). In accordance with Article 15 par. 4 c) of the Council Regulation establishing a European Union Fundamental Rights Agency (hereafter "the Regulation"), the Director is responsible for all staff matters. As the Commission is not competent for this case, there are no documents to refer to.

GESTDEM 2013/2526

Point 1

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."

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.

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).

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.

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.

Yours faithfully,

The Secretariat

European Commission
Directorate General Justice
Unit C1 - Fundamental Rights and Rights of the Child

Office: Rue Montoyer, 59 5/075, 1000 Brussels, Belgium
Mail address: European Commission – DG JUST/C1 - MO59 05/075
B-1049 Brussels – Belgium
E-mails: [email address]

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Dear Justice (JUST),

Thank you for your reply. For a better understanding of your 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 today, 28.05.2013
Please find below the 6 parts, combined as mentioned above. It is easier to understand.

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/grant... 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/a... 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?”. Thank you.

Yours faithfully,

Kurt Weiss

Dear Justice (JUST),

This is a reminder that my a number of points from my request of 28 May 2013 are still pending your reply. I would appreciate if you could analyze it. Thank you.

Yours faithfully,

Kurt Weiss

Justicia y Consumidores

3 Adjuntos

Dear Mr Weiss,

We checked your request sent on 28 May and the reply that was sent to you on 24 June (see enclosed). We consider that we answered to your request in our reply.

As regards your request to have access to the career development report of the Director of FRA, Mr Morten Kjaerum, we clarified in our reply of 24 June the legal context applicable to such a request. We also asked you, in that context, for your postal address, as we need to inform the data subject (Mr Kjaerum) about the identity of the person requesting to have access to his personal data. You have not provided us with this information until now. Thus, we are not in a position to handle your request,

Yours faithfully,

Salla Saastamoinen
--------------------------------
Head of Unit
JUST.C.1 Fundamental rights and rights of the child
Directorate General Justice
European Commission
E-mail: [email address]

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Dear Ms Saastamoinen,

As per your request I complied with the requirements set up. I sent the requested data in your email.

Yours faithfully,

Kurt Weiss