OCM(2019)4699 - 27/02/2019
Directorate C: Investigation Support
Gisella ROJAS
Director
Calle Bayona, 2
28028 Madrid
Spain
e-mail:
ask+reuest-6281-
xxxxxxxx@xxxxxxxx.xxx
Via e-mail and registered mail with AR
Brussels,
olaf.c.4(2019)5291
Subject:
Your application for public access to documents
GestDem 2019/300
Case No LC/2019/0022 (Please include this number in all correspondence)
Dear Ms Rojas,
We refer to your request dated 15/01/2019 sent via asktheeu.org to DG HOME, registered
under Ares(2019)265181, GestDem 2019/300 and re-attributed to OLAF on 6/02/2019, by
which you submitted an application for access to documents under Regulation (EC) No
1049/20011 regarding public access to European Parliament, Council and Commission
documents.
Under GestDem 2019/300 you requested access to "all the discussion in the meetings,
conclusions, lines, activities or any document released about the Lesbos refugee camp at
centre of Greece, regarding the (apparently) misuse of EU funds".
1. Preliminary remarks
OLAF has identified an investigation and related documents that relate to your request. The
Office has issued the following message to journalists:
"We can confirm that, following information submitted by the Directorate-General for Migration
and Home Affairs (DG HOME) to OLAF in 2017, OLAF opened an investigation into alleged
irregularities concerning the provision of EU-funded food for refugees in Greece.
As the investigation is ongoing, OLAF cannot issue any further comment at this stage. This is
in order to protect the confidentiality of on-going and possible ensuing investigations,
subsequent judicial proceedings, personal data and procedural rights.
The fact that OLAF is examining the matter does not mean that any persons/entities involved
have committed an irregularity/fraud. OLAF fully respects the presumption of innocence and
the rights of defence of the persons/entities concerned by an investigation."
1
OJ L145, 31.05.2001, page 43.
OLAF Rue Joseph II, 30 B-1049 Brussels (Belgium) Tel: +32 (0)2 299 11 11 Web:
http://ec.europa.eu/anti_fraud
OCM(2019)4699 - 27/02/2019
The documents we identified as falling within the scope of your application are part of the
OLAF's investigative file and we wish to clarify from the outset that the Office 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 883/2013 and Article 17 of the
Staff Regulations.
Conversely, the purpose of Regulation 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.
2. Assessment of the documents under Regulation (EC) 1049/2001 - relevant
applicable exceptions – presumption of non-accessibility
Having carefully considered your application OLAF regrets to inform you that your
application cannot be granted, as disclosure is prevented by an exception to the right of access
laid down in Article 4 of Regulation (EC) 1049/2001 based on the following considerations.
The requested documents are part of OLAF's investigation file. The investigation in this case
is on-going.
The requested documents are covered by the exception under 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.
The General Court recognised in recent case-law2 the existence of a general presumption of
non-accessibility under which the disclosure to the public under Regulation 1049/2001 of
documents related to OLAF investigations could fundamentally undermine the objectives of
the investigative activities both now and in the future.
The presumption is based on the consideration that, to determine the scope of Regulation
1049/2001, account must be taken of relevant sectoral rules governing the administrative
procedure under which the documents requested under Regulation 1049/2001 were
gathered3. In the case at hand, Regulation 883/2013, which governs OLAF's administrative
activity provides for the obligation of confidentiality with regard to all information gathered
during investigations.
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 the individuals, so that the information they provide is used only for the
purposes of the investigation.
In addition, having regard to the nature of the information processed in the context of OLAF
investigations, the publication of the sensitive information contained in the OLAF case file
might harm the protection of personal data and/or the integrity of persons involved in the
investigation, as sources of information, witnesses, persons concerned, officials of the
competent authorities and OLAF officials.
2 Judgment of the General Court of 26 May 2016,
IMG v
Commission, T-110/15, ECLI:EU:T:2016:322,
paragraphs 28-50.
3 Judgment Court of Justice of 28 June 2012,
Agrofert Holding v
Commission, C-477/10 P,
EU:C:2012:394,
paragraphs 50-59; judgment of the Court of Justice of 29 June 2010,
Commission v
Technische Glaswerke
Ilmenau, C-139/07 P, EU:C:2010:376, paragraph 55 ff.; judgment of the General Court of 26 May 2016,
IMG v
Commission, T-110/15, ECLI:EU:T:2016:322, paragraphs 29-34.
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OCM(2019)4699 - 27/02/2019
In view of the foregoing, the documents in OLAF's investigation files fall under the
presumption of non-accessibility as documents containing information which are collected
during an OLAF investigation and are subject to professional secrecy.
In accordance to the case-law, that presumption applies in full regardless of whether the
request for access to documents concerns an on-going or a closed investigation.4
Consequently, the documents requested are exempt, in principle and in full, from disclosure
to the public, unless the applicant demonstrates that the presumption is not applicable
because an overriding public interest justifies the disclosure of the requested documents.5
3. Partial Access
OLAF has examined the possibility of granting partial access to the requested documents in
accordance with Article 4(6) of Regulation 1049/2001.
Partial access is not possible, given that the information the documents contain falls entirely
under the general presumption of applicability of Article 4(2), third indent of Regulation
1049/2001 in the context of inspections and audits.
4. 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.
In addition, the requested documents also involve the protection of privacy and integrity of
individuals (Article 4(1)(b) of Regulation 1049/2001) where overriding public interest in
disclosure is not applicable.
5. 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 Ville ITÄLÄ
Director General OLAF
European Commission
B-1049 BRUXELLES
BELGIUM
4 Ibid.;
5 Judgment of the General Court of 26 May 2016,
IMG v
Commission, T-110/15, ECLI:EU:T:2016:322, paragraph
38.
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OCM(2019)4699 - 27/02/2019
Your attention is drawn to the privacy statement below.
Yours sincerely,
Signed Electronically
on 27/02/2019 at 11:13 by DALHEIMER Dorothe [Acting DIRECTOR] by
delegation from SANZ REDRADO Beatriz [DIRECTOR]
Privacy statement
Pursuant to Articles 15 and 16 of Regulation (EU) 2018/1725 on the protection of natural persons with regard to
the processing of personal data by Union Institutions, bodies, offices and agencies and of 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 and
Commission Decision 2001/937/EC.
The categories of your personal data being processed are identification and contact data 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, and third parties, within the meaning of Articles
4(4) and 3(b) of Regulation 1049/2001, and Article 5 of Commission Decision 2001/937/EC, have access to your
personal data. Personal data that appear on the requested document may only be disclosed to the applicant
following an assessment under Article 9(b) of Regulation (EU) 2018/1725. There is no automated decision process
by OLAF concerning any data subject.
All documentation 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 request access to your personal data, rectification or erasure of the data, or restriction of
their processing. Any request to exercise one of those rights should be directed to the Controller (
OLAF-FMB-DATA-
xxxxxxxxxx@xx.xxxxxx.xx). You may contact the Data Protection Officer of OLAF
(OLAF-FMB-
xxx@xx.xxxxxx.xx) with regard to issues related to the processing of your personal data under Regulation (EU)
2018/1725.
You have the right to have recourse to the European Data Protection Supervisor
(xxxx@xxxx.xxxxxx.xx) if you
consider that your rights under Regulation (EU) 2018/1725 have been infringed as a result of the processing of
your personal data by OLAF.
The complete privacy statements for this and all other OLAF personal data processing operations are available at
http://ec.europa.eu/anti_fraud.
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