OCM(2019)16401 - 22/07/2019
Directorate C: Investigation Support
Ms Martina TOMBINI
Director
Calle Cava de San Miguel, 8, 4C
28005 Madrid
Spain
E-mail:
ask+request-6936-
xxxxxxxx@xxxxxxxx.xxx
Via e-mail and registered mail
with AR
Brussels,
olaf.c.4(2019)17479
Subject:
Your application for public access to documents
Dear Ms Tombini,
We refer to your message of 28 May 2019 addressed to OLAF via AsktheEU website and
registered on 5 June 2019 under OCM(2019)12608, by which you requested public access
to documents on travel expenses by OLAF officials.
1.
Scope of your request and supporting arguments
By your above request you ask access to documents that contain details "on the travel
expenses of OLAF Directors: V. Itälä, D. Schnichels, E. Bianchi, B. Sanz Redrado and M.
Hofmann for the period 1 January 2015 to 30 April 2019 inclusive”. More specifically you
request access to documents "that contain (at least) the following information for each trip:
- Place of origin and destination
- Amount spent on travel or transportation;
- Exact dates and duration of the trip;
- Amount spent on accommodation;
- Amount spent on subsistence;
- Other information, such as possible miscellaneous costs."
You requested that "the documents provided contain sufficient details to enable
identification for each type of miscellaneous cost (what the money was spent on) and the
total amount (in local currency and/or in Euros) for each item".
"If the travel was by air taxi and a team of people were travelling", you also asked for
"documents with details on other travellers, at minimum their names and job titles".
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)16401 - 22/07/2019
You further remarked that the information you seek, i.e. the name and surname of the
persons mentioned above, is already in the public domain and that you do not seek for any
other personal information such as bank accounts details or data such as office addresses,
signatures or telephone numbers of the staff members.
When evaluating your application, you asked to consider the following:
-
You consider that the publication of travel details of senior officials is essential to
ensure that the European Anti-Fraud Office is both transparent and accountable. The
information is necessary for a member of the public to scrutinise the spending of
public funds and to evaluate whether funds are being spent appropriately on travel,
accommodation, meals, and other related costs.
-
You submit that OLAF Directors should be standard bearers for the highest standards
of probity and this can only be ascertained by having details about the way in which,
and on what, they are spending public funds. You opine that in this context, in terms
of Regulation 45/2001, there should be a general presumption of the necessity of
transferring data that is essential to ensuring accountability by the public of the
spending of public funds. In this context, you point to your role as Researcher and
Campaigner at Access Info Europe. That organisation is working on a range of
projects relating to transparency of public activity.
-
You further submit that there is no reason to assume that the data subject’s
legitimate interests – in particular their privacy and integrity - might be prejudiced,
considering that they are senior (top level) public figures about whom much is
already known; and the travels and meetings of these persons is often subject to
proactive transparency. In particular, you consider that information on details of
business trips is related to the spending of public funds and does not reveal anything
about the private lives of the persons in question.
-
Moreover, you consider that, even if the information might result in some kind of
comments about or even criticism of the Directors, it should also be taken into
consideration that non-publication of such information could be even more
damaging. According to you, this situation is analogous to that which arose in the
ClientEarth case where the Court concluded that publication of the requested
information was likely to be less damaging than non-publication because “[o]n the
contrary, such disclosure would, by itself, have made it possible for the suspicions
of partiality in question to be dispelled or would have provided to experts who might
be concerned with the opportunity to dispute, if necessary by available legal
remedies, the merits of those allegations of partiality.” In a similar vein, while the
continuing non-publication of data about the expenses of each Director is likely to
result in a climate of suspicion and mistrust in which possibly false allegations could
be made, the publication of the information could dispel such rumours and hence
contribute to protecting the integrity of the persons concerned.
Hence you conclude, the two cumulative conditions set out in Regulation 45/2001 are
satisfied and provision of the requested information would constitute lawful processing of
personal data.
Taking into account the information you requested, we consider your request as an
application for access to documents under Regulation (EC) No 1049/20011 regarding public
access to European Parliament, Council and Commission documents.
1
Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding
public access to European Parliament, Council and Commission documents, OJ L145, 31.05.2001, page
43.
2
OCM(2019)16401 - 22/07/2019
2.
Assessment of the documents under Regulation (EC) 1049/2001 - relevant
applicable exceptions
Having carefully considered your application, OLAF regrets to inform you that your application
cannot be granted, as disclosure is prevented by the exceptions to the right of access laid
down in Article 4 of Regulation (EC) 1049/2001 based on the following considerations.
2.1
Protection of the privacy and integrity of the individual
Article 4(1)(b) of Regulation 1049/2001 provides that the institutions shall refuse access to a
document where disclosure would undermine the protection of (…) privacy and the integrity of
the individual, in particular in accordance with Community legislation regarding the protection
of personal data.
According to the definition provided for in Article 3(1) of Regulation 2018/17252, personal data
means any information relating to an identified or identifiable natural person (‘data subject’);
an identifiable natural person is one who can be identified, directly or indirectly, in particular
by reference to an identifier such as a name, an identification number, location data, an online
identifier or to one or more factors specific to the physical, physiological, genetic, mental,
economic, cultural or social identity of that natural person.
Consequently, the information requested, by its very nature constitutes personal data within
the meaning quoted above. Indeed, your request concerns concrete and clearly identified
natural persons.
As far as your request forming the subject of this decision is concerned, the information
requested is included in the cost statements relating to the official assignments (business trips)
of the Director-General of OLAF and OLAF directors. These cost statements contain information
directly related to the concrete individuals and therefore constitute personal data.
Public disclosure of the above-mentioned personal data, through the release of the documents
(i.e. the cost statements) containing it would constitute processing (transfer) of personal data
within the meaning of Article 3(3) of Regulation 2018/1725.
In its judgement in Case C-28/08 P
(Bavarian Lager)3, the Court of Justice ruled that when
a request is made for access to documents containing personal data, Regulation (EC) No
45/2001 (now replaced by, Regulation (EU) 2018/1725) becomes fully applicable.
Pursuant to Article 9(1)(b) of Regulation (EU) 2018/1725, ‘personal data shall only be
transmitted to recipients established in the Union other than Union institutions and bodies if
‘[t]he recipient establishes that it is necessary to have the data transmitted for a specific
purpose in the public interest and the controller, where there is any reason to assume that the
data subject’s legitimate interests might be prejudiced, establishes that it is proportionate to
transmit the personal data for that specific purpose after having demonstrably weighed the
various competing interests’.
Only if the conditions set out under Article 9(1)(b) of Regulation (EU) 2018/1725 are fulfilled
and the transfer constitutes lawful processing in accordance with the requirements of Article 5
of Regulation 2018/1725, can the processing (transfer) of personal data occur.
2
Regulation (EU) 2018/1725 of the European parliament and of the Council of 23
October 2018 on the protection of natural persons with regard to the processing of personal data by the
Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing
Regulation (EC) No 45/2001 and Decision No 1247/2002/EC, OJ L295, 21.11.2018, page 39.
3
Judgement of the Court of Justice of 29 June 2010, European Commission v The Bavarian Lager Co. Ltd,
C-28/08 P, EU:C:2010:378, paragraph 59.
3
OCM(2019)16401 - 22/07/2019
In that context, whoever requests such a transfer must first establish that it is necessary for
a specific purpose in the public interest. If it is demonstrated to be necessary, it is then for the
Institution concerned to determine that there is no reason to assume that that transfer might
prejudice the legitimate interests of the data subject4. Where there is any reason to assume
that the data subject’s legitimate interests might be prejudiced, the controller of personal data
then establishes whether it is proportionate to transmit the personal data for that specific
purpose after having demonstrably weighed the various competing interests.
Indeed, in its judgement in the
ClientEarth case, the Court of Justice ruled that “
whoever
requests such a transfer must first establish that it is necessary. If it is demonstrated to be
necessary, it is then for the institution concerned to determine that there is no reason to
assume that that transfer might prejudice the legitimate interests of the data subject. If there
is no such reason, the transfer requested must be made, whereas, if there is such a reason,
the institution concerned must weigh the various competing interests in order to decide on the
request for access”5. We refer also to the
Strack case, where the Court of Justice ruled that
the Institution does not have to examine by itself the existence of a need for transferring
personal data6.
The Court has also confirmed that a mere
interest of members of the public in obtaining certain
personal data cannot be equated with a
necessity to obtain the said data in the meaning of
Regulation 45/20017. Furthermore, according to the
Dennekamp judgement, if the condition
of necessity laid down by Article 8(b) of Regulation No 45/2001, which is to be interpreted
strictly, is to be fulfilled, it must be established that the transfer of personal data is the most
appropriate means for attaining the applicant's objective, and that it is proportionate to that
objective8.
In this respect, it is observed that the travel costs of Commission staff members, including
OLAF Staff, are regulated by Articles 11 - 13 of Annex VII to the Staff Regulations9 and are
subject to a detailed legal and technical framework. There is careful scrutiny of all declared
mission costs for all staff of the Commission, including the staff of OLAF, at all levels. It
takes place in form of checks of mission orders as well as of declarations of costs incurred.
In addition to internal checks, the costs are also subject to budgetary controls, and can be
subject to audits carried out by the Internal Audit Service and the European Court of
Auditors. As a result, public scrutiny of details of individual missions is not of necessity to
ensure that public money is spent in accordance with applicable rules.
Moreover and importantly, the persons whose travel costs you are seeking access to are
officials; they are not considered to be public office holders but exercise supportive functions
allowing the Institutions to perform their mission. Even if the travel costs are incurred in their
professional functions, the information requested nevertheless constitutes personal data.10
In this respect, the present request cannot be assimilated to the situation at hand in the
ClientEarth case. That case involved the requested disclosure of the names of experts who
expressed their opinions in the process of preparation of a guidance document concerning
the application of a provision of Regulation (EC) No 1107/2009 concerning the placing of
plant protection products on the market.
4
Ibid.
5
Judgement of the Court of Justice of 16 July 2015 in case C-615/13 P,
ClientEarth v EFSA,
(ECLI:EU:C:2015:219), paragraph 47.
6
Judgement of the Court of Justice of 2 October 2014 in case C-127/13 P,
Strack v Commission,
(ECLI:EU:C:2014:2250), paragraph 106.
7
Ibid, paragraphs 107 and 108.
8
Judgement of the General Court of 15 July 2015 in case T-115/13,
Dennekamp v European Parliament,
(ECLI:EU:T:2015:497), paragraph 77.
9
Staff Regulations of Officials and conditions of employment for other Servants of the EU.
10
See to that effect, judgement of the General Court of 25 September 2018,
Psara et al. v
European
Parliament, cited above, par. 52; judgment of the Court of 16 July 2015,
ClientEarth and PAN Europe v
EFSA, C-615/13 P, EU:C:2015:489, par. 31.
4
OCM(2019)16401 - 22/07/2019
In this context, the Court held that disclosure of the requested information was necessary
to ensure the transparency of the process of adoption of a measure likely to have an impact
on the activities of economic operators, in particular, in order to appreciate how the form
of participation by each expert in that process might, through that expert’s own scientific
opinion, have influenced the content of that measure.11
The case thus referred to a measure of horizontal application aimed at providing guidance
on the application of EU legislation and was, in this regard, closely linked with legislative
activities of the EU institutions. The Court reminded in that judgement that the transparency
of the process followed by a public authority for the adoption of
a measure of that nature (emphasis added) contributes to that authority acquiring greater legitimacy in the eyes of
the persons to whom that measure is addressed and increasing their confidence in that
authority.12
In the present instance, you requested access to documents containing detailed information
on missions of named high ranking OLAF staff, constituting their personal data. Your request
is not linked to the adoption of any measure of horizontal application but to activities that
are part of the day-to-day operation of the Office and for which internal administrative
processes apply. This matter is therefore essentially different and is not comparable with
the above mentioned situation analysed in the
ClientEarth case. In addition it should be
pointed out that according to case law, the administrative activity of the Commission does
not require the same extent of access to documents as required by the legislative activity
of a Union institution.13
OLAF is also not aware of a generalised practice to publish travel costs of officials, including
high ranking officials, in the European Commission.
For these reasons, OLAF considers that the necessity to make the travel costs of OLAF staff
public in order to subject them to a public scrutiny has not been established. In any event
the disclosure of the documents requested is not the most appropriate means for attaining
the stated objective as extensive controls already apply. The disclosure of personal data is also
not proportionate to that objective. Moreover, the data subjects’ legitimate interests might
be prejudiced.
Finally, the current data protection law is relevant in the present context, i.e. the requested
disclosure has to be assessed under Article 9(1)(b) of Regulation 2018/1725 as set out
above. There is not,
de lege lata, a presumption of disclosure.
Nonetheless, OLAF publishes information on its activities on its website, including where
appropriate about missions of its staff. We consider that through the above-mentioned
initiative, the appropriate level of public transparency with regard to the travels of top officials
is ensured.
In the light of the above, we have to conclude that the transfer of personal data through the
public disclosure of the personal data included in the relevant costs statements cannot be
considered as fulfilling the requirements of Regulation 2018/1725. In consequence, the use of
the exception under Article 4(1)(b) of Regulation 1049/2001 is justified. The arguments put
forward in your request do not lead to a different outcome.
11
Judgement of the Court of 16 July 2015,
ClientEarth and PAN Europe v
EFSA, C-615/13 P, cited above,
par. 55.
12
Ibid., par. 56.
13
Judgement of the Court of 27 February 2014,
Commission v
EnBW, C-365/12 P, EU:C:2014:112,
paragraph 91.
5
OCM(2019)16401 - 22/07/2019
3.
Presumption of non-accessibility to OLAF investigation documents
The requested documents concern in part investigation related travels. OLAF staff carries out
inspections and on-the-spot checks of economic operators in the EU and in third countries, in
accordance with the applicable legal framework. OLAF staff also meets competent authorities
of the Member States and third countries for operational purposes, e.g. to coordinate
investigations. Travel for these purposes is an integral part of OLAF's investigations.
For this reason the missions in the context of investigations additionally fall under the exception
from public access to documents 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 as well as
the protection of the decision-making process as referred to Article 4(3) second sentence
of the Regulation, unless there is an overriding public interest in disclosure.
The General Court recognised in recent case-law14 a general presumption of non-accessibility
for documents in OLAF case files. It considers that the disclosure to the public under Regulation
1049/2001 of documents related to OLAF internal investigations could fundamentally
undermine the objectives of the investigative activities, as well as the decision making process,
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
gathered15, 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.
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 the information it obtains during an investigation 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
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).
In view of that regulatory context, the Court held that allowing public access to OLAF
investigation documents would be particularly detrimental to OLAF’s ability to fulfil its mission
of fight against fraud in the public interest. Some of the documents requested relate to the
investigation activities aiming at gathering evidence and verifying allegations. The disclosure
of the documents concerned would seriously affect the decision-making process of OLAF, as it
would seriously jeopardize the full independence of future OLAF investigations and their
objectives by revealing OLAF’s strategy and working methods.
14
Judgement of the General Court of 26 April 2016,
Strack v
Commission, T-221/08, EU:T:2016:242,
paragraph 162.
15
Judgement Court of Justice of 28 June 2012,
Agrofert Holding v
Commission, C-477/10 P,
EU:C:2012:394,
paragraphs 50-59; judgement 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..
6
OCM(2019)16401 - 22/07/2019
It could also discourage individuals to send information concerning possible fraud thus
depriving OLAF of useful information to initiate investigations aiming at protecting the financial
interests of the Union. They must be reassured that their statements will be kept confidential
otherwise, they might be inclined to censor the information they give or to hold back sensitive
information.16
The specific confidentiality rules regarding the documents related to OLAF investigations are
justified not only in so far as OLAF collects, as part of such an investigation, sensitive business
secrets and highly sensitive information on individuals whose disclosure could significantly
harm their reputation, but also to the extent that the access to documents relating to an
investigation by OLAF, even after the conclusion of the investigation in question might, as
explained above, seriously hamper the work of OLAF, disclose the methodology and strategy,
harm the availability of those involved in the procedure to collaborate in the future and,
therefore prejudice the proper functioning of the investigations in question and the
achievement of their objectives.
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. The protection of confidentiality extends to closed cases17.
4.
Partial Access
OLAF has also examined the possibility of granting partial access to the requested
documents in accordance with Article 4(6) of Regulation (EC) No 1049/2001.
No meaningful partial access to the cost statements concerned is possible, as the entirety
of the information falling under the scope of your application and included therein is covered
by the exception in Article 4(1)(b) of Regulation 1049/2001, and in part additionally fall
entirely under the general presumption of applicability of Article 4(2), third indent and
Article 4(3) of Regulation 1049/2001 in the context of inspections and audits.
5.
Overriding public interest in disclosure
The exception laid down in Article 4(1)(b) of Regulation 1049/2001 is an absolute exception,
i.e. its applicability does not need to be balanced against any possible 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, an
application under Regulation (EC) No 1049/2001 would have to contain clear elements to
indicate the existence of an overriding interest to justify putting internal OLAF documents
and other information from the investigation file into the public domain.
16
See judgement in
Agrofert Holding v
Commission, cited above EU:C:2012:394, paragraph 66.
17
Judgement of the General Court of 26 April 2016,
Strack v
Commission, T-221/08, EU:T:2016:242,
paragraphs 150 to 164.
7
OCM(2019)16401 - 22/07/2019
6.
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
Your attention is drawn to the privacy statement below.
Yours sincerely,
Signed Electronically
on 22/07/2019 at 15:16 by
Maria Beatriz Sanz Redrado [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.
8
