Adoption of Commission Decisions by the written procedure, day notes

La solicitud fue rechazada por Secretaría General de la Comisión Europea.

Dear Secretariat General (SG),

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:

R1. The day notes the Secretariat-General submitted to the College from 1/3/2003 to 31/3/2003 for Decisions adopted by the written procedure (e.g. SEC(2003) 325 et seq) and the College formally ‘took note’.

R2. The day notes the Secretariat-General submitted to the College from 1/3/2003 to 31/3/2003 for Decisions adopted by the sensitive written procedure (e.g. SEC(2003) 326 ) and the College formally ‘took note’.

R3. The day notes the Secretariat-General submitted to the College from 1/3/2003 to 31/3/2003 for Decisions adopted by the empowerment written procedure (e.g. SEC(2003) 327 et seq ) and the College formally ‘took note’.

R4. The day notes the Secretariat-General submitted to the College from 1/4/2007 to 30/4/2007 for Decisions adopted by the written procedure (e.g. SEC(2007) 456 et seq) and the College formally ‘took note’.

R5. The day notes the Secretariat-General submitted to the College from 1/4/2007 to 30/4/2007 for Decisions adopted by the sensitive written procedure (e.g. SEC(2007) 457 ) and the College formally ‘took note’.

R6. The day notes the Secretariat-General submitted to the College from 1/4/2007 to 30/4/2007 for Decisions adopted by the empowerment written procedure (e.g. SEC(2007) 458 et seq ) and the College formally ‘took note’.

R7. The day notes the Secretariat-General submitted to the College from 1/10/2012 to 31/10/2012 for Decisions adopted by the written procedure (e.g. SEC(2012) 545 et seq) and the College formally ‘took note’.

R8. The day notes the Secretariat-General submitted to the College from 1/10/2012 to 31/10/2012 for Decisions adopted by the empowerment written procedure (e.g. SEC(2007) 546 et seq ) and the College formally ‘took note’.

It is clarified that it is expected that the Secretariat-General will fully release copies of the documents the College formally took note at the meetings and not other 'transitory' documents.

Yours faithfully,

Kostas VITSOS

Secretaría General de la Comisión Europea

Dear Sir,

Thank you for your e-mail dated 11/07/2013.

We hereby acknowledge receipt of your application for access to documents, which was registered on 12/07/2013 under reference number GestDem 2013/3660.

In accordance with Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, your application will be handled within 15 working days.

The time limit will expire on 02/08/2013. In case this time limit needs to be extended, you will be informed in due course.

Yours faithfully,

Carlos Remis
SG.B.5.
Transparence.
Berl. 05/329.

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Secretaría General de la Comisión Europea

46 Adjuntos

Dear Mr. Vitsos,
 
Subject:        Your application for access to documents – Ref GestDem No
3660/2013 (PART I – docs 2003)
 
Thank you for your e-mail, requesting access to documents under Regulation
No 1049/2001 (1) regarding public access to European Parliament, Council
and Commission documents.
We inform you that, due to the large amount of documents requested (140
documents) we will deal with your request in three parts.
As already explained in our answer to your last request to documents on 4
April 2013 (Gestdem 1793/2013) please be reminded that all the attached
day notes are electronic versions of the original day notes, which have
been deposited in the archives of the Commission. These copies are
extracted from the Commission's electronic archive and fully reflect the
content of the originals.
 
 
 
For the college formally took note: see PV(2003) 1604, 1605, 1606, 1607,
1608, available at the address below:
[1]http://ec.europa.eu/transparency/regdoc/...
 
 
 
 
R1. The day notes the Secretariat-General submitted to the College
     from 1/3/2003 to 31/3/2003 for Decisions adopted by the written
     procedure (e.g. SEC(2003) 325 et seq) and the College formally
     ‘took note’.
 
 
R2. The day notes the Secretariat-General submitted to the College
     from 1/3/2003 to 31/3/2003 for Decisions adopted by the sensitive
     written procedure (e.g. SEC(2003) 326 ) and the College formally
     ‘took note’.
 
 
 
R3. The day notes the Secretariat-General submitted to the College
     from 1/3/2003 to 31/3/2003 for Decisions adopted by the empowerment
     written procedure (e.g. SEC(2003) 327 et seq ) and the College
     formally ‘took note’.
 
 
Yours sincerely,
For the Registry Director
Martine DEPREZ
European Commission
Secretariat General/Head of Unit  SG.A.1 (Registry)
Tel. +32 2 29 62236
_______________________________
(1) OJ L 145, 31.05.2001, page 43
 
 
 
 
 
 
 
 
 

References

Visible links
1. http://ec.europa.eu/transparency/regdoc/...

Secretaría General de la Comisión Europea

43 Adjuntos

 
Dear Mr. Vitsos,
 
Subject:        Your application for access to documents – Ref GestDem No
3660/2013 (PART II – docs 2007)
For the college formally took note: see PV(2007) 1784, 1785, 1786, 1787
available at the address below:
[1]http://ec.europa.eu/transparency/regdoc/...
 
R4. The day notes the Secretariat-General submitted to the College
     from 1/4/2007 to 30/4/2007 for Decisions adopted by the written
     procedure (e.g. SEC(2007) 456 et seq) and the College formally
     ‘took note’.
 
 
 
     R5. The day notes the Secretariat-General submitted to the College
     from 1/4/2007 to 30/4/2007 for Decisions adopted by the sensitive
     written procedure (e.g. SEC(2007) 457 ) and the College formally
     ‘took note’.
 
 
 
 
     R6. The day notes the Secretariat-General submitted to the College
     from 1/4/2007 to 30/4/2007 for Decisions adopted by the empowerment
     written procedure (e.g. SEC(2007) 458 et seq ) and the College
     formally ‘took note’.
 
 
 
 
 
 
 
 
 

References

Visible links
1. http://ec.europa.eu/transparency/regdoc/...

Secretaría General de la Comisión Europea

46 Adjuntos

Dear Mr. Vitsos,
 
Subject:        Your application for access to documents – Ref GestDem No
3660/2013 (PART III – docs 2012)
For the college formally took note: see PV(2012) 2019, 2020, 2021, 2022
available at the address below:
[1]http://ec.europa.eu/transparency/regdoc/...
 
 
R7. The day notes the Secretariat-General submitted to the College
     from 1/10/2012 to 31/10/2012 for Decisions adopted by the written
     procedure (e.g. SEC(2012) 545 et seq) and the College formally
     ‘took note’.
 
 
 
     R8. The day notes the Secretariat-General submitted to the College
     from 1/10/2012 to 31/10/2012 for Decisions adopted by the
     empowerment written procedure (e.g. SEC(2007) 546 et seq ) and the
     College formally ‘took note’.
 
 
 

References

Visible links
1. http://ec.europa.eu/transparency/regdoc/...

Dear Secretariat General (SG),

In accordance with article 8 of Regulation No 1049/2001 a confirmatory application is kindly submitted for the release of a ‘true copy’ of each single day notes the College took note in 2003 and 2007 respectively.

From the outset it is pointed out that the released day notes of 2003 and 2007 are documents expressly ‘produced’ in 2013 to fulfill the present application and cannot be accepted that their release meets the requirements of Regulation No 1049/2001.

I. COMMENTS ON THE RELEASED DAY NOTES OF YEARS 2003 AND 2007

According to the initial reply “please be reminded that all the attached day notes are electronic versions of the original day notes, which have been deposited in the archives of the Commission. These copies are extracted from the Commission's electronic archive and fully reflect the content of the originals”.

The reply seems to imply that the Secretariat-General does not hold copies of the 2003 & 2007 day notes similar to the released ones of 2012. The largest of the released 2012 day notes has a size of 334 KB. The total number of day notes the College took note in a single year is in the order of, say, 300. The aggregate size of all those day notes (in a ‘proper’ PDF format like those of year 2012) is, at a maximum, in the order of 100 MB. The total size of all day notes ever since Regulation No 1049/2001 entered into force is in the order of 1.5 GB, which a trivial amount of storage space in an electronic archiving system of an Institution like the Commission.

The released day notes of year 2003 and 2007 were created with Word 2010, which most certainly did not exist in 2003 or 2007. The Commission’s electronic archives contain the electronic versions of the ‘originals’ (in the sense of the document that was printed) in another document format, quite likely Word 2003. There is no valid reason to use Word 2010 to open the electronic ‘originals’ and convert/print them into a PDF format and subsequently release them to an applicant. The official who did that (or even the computer application that may have done it automatically) may have accidentally changed the contents of the electronic ‘original’.

Typically, the creation date indicated in Commission-produced PDF files is not that much different from the date indicated in a document itself (usually top of first page). Indeed, the PDF creation dates indicated in the 2012 released day notes confirm this finding. Documents drawn up by the Secretariat-General about Commission Decisions of 2007 and released pursuant to Regulation No 1049/2001 indicate (according to the PDF document properties) that they were produced by the application ‘ORC CoDe 1.20 .... (c) 2005-2007 European Commission’. It is not the case for the released day notes of 2003 and 2007.

Even if the electronic ‘original’ ‘theory’ is to be accepted, it is very perplexing that the Secretariat-General bothered itself with in not releasing these ‘originals’ and instead used Word 2010 to open the ‘originals’ and convert them into PDF files.

The released day notes are wholly incomplete copies of the day notes. In particular, the following items characterising a proper Secretariat-General document are missing:
- The EU emblem
- The label ‘European Commission’
- The label ‘Secretariat-General’
- The date and place in which the document was drawn up

Furthermore, the authentication reference number is missing. In other words, the released day notes are ‘non-documents’ in the sense that they are not copies of statutory instruments or copies of authenticated copies of statutory instruments.

II. OBLIGATIONS ACCORDING TO REGULATION NO 1049/2001

The Commission services are under an obligation to release copies of documents held by the Commission. No exception is applicable to the requested day notes, and therefore their full release to an applicant is necessary.

The archival of ‘true copies’ of day notes (such as the released of year 2012) neither does release the Commission services from their obligations according to Regulation No 1049/2001 nor does it entitle/authorise them to release ‘improper’ and partial copies thereof. After all, the Commission services do indeed hold ‘true copies’ of the year 2003 and 2007 day notes, similar to the year 2012 released ones.

I find weird that an applicant has to bring the attention of the Secretariat-General its own ‘STAFF GUIDE TO PUBLIC ACCESS TO COMMISSION DOCUMENTS’ found at http://www.statewatch.org/news/2009/apr/.... There is a passage in the middle of page 7 that reads: ‘Up to the end of the 30-year period, documents are subject to Regulation No 1049/2001 on public access to documents. It is up to the department that received or produced the document (or the department currently exercising these powers) to search for the material and authorise access, regardless of where the document is being kept.’

Consequently, and according to its own Staff Guide the Secretariat-General is obliged to release ‘true copies’ of the day notes. Although the Staff Guide neither does by itself create some kind of a ‘right’ to citizens (it is solely an internal document) nor does it oblige the Commission services to follow it, nevertheless it lends full support to the argument herein about the release of ‘true copies’.

III. CONSEQUENCES OF NOT RELEASING ‘TRUE COPIES’ OF DAY NOTES

The creation of ‘special’ documents (such as the released day notes of 2003 and 2007) that are released instead of ‘true copies’ thereof opens the door for misleading applicants about the contents of documents. Taking such a practice to its extremes, it allows an administrative department to ‘create’ and ‘release’ non-existing documents, or modify the document contents to serve a department’s ‘private’ interests. It is an antithesis to the sound administration, the spirit and the letter of Regulation No 1049/2001.

This is particularly the case for day notes. It is conceivable, and in fact it has happened in a few occasions, that a Member of the Commission suspended a written procedure to adopt a Decision. This must be reflected in the corresponding day notes, in the sense that the suspended Decision does not appear in the day notes of the week in which the time-limit for raising objections had expired. Failure to release a ‘true copy’ of a day note engenders in the minds of the citizens the reasonable suspicion that at least one of the Decisions was not adopted because the written procedure was suspended. There is no other way for the public to be confident that the written procedure to duly adopt a Decision was not suspended. Put differently, ‘true copies’ of day notes are essential to legal certainty.

The particular practice of the Secretariat-General regarding the 2003 and 2007 released day notes has slightly and temporarily ‘tainted’ every single Decision adopted by the written procedure with doubts whether its adoption was suspended. This is particularly the case for all Decisions not dispatched to addresses outside the Commission.

For autonomous Commission Decisions ‘tainted’ by other ‘highly unusual’ legal provisions such as Decision C(2007) 1509 concerning the adoption of the FP7 model grant agreement, such doubts are, rightly, extremely serious in view of the ‘innovations’ of article 13 of Annex II that grants ‘personal data’ to legal persons. The false declarations of the prior notification of article 25 of Regulation No 45/2001 DG RTD 3398 (EDPS purported ‘consultation’ and no use of processors) imply that DG RTD has been rather ‘messy’ with the substance underlying Decision C(2007) 1509. Any failure to release a ‘true copy’ of the day note corresponding to Decision C(2007) 1509 will rightly sow serious doubts whether Decision C(2007) 1509 was dully adopted.

An insistence of the Commission services not to release a ‘true copy’ of the day note concerning C(2007) 1509 can only give rise to the suspicion that the Legal Services and the Secretariat-General had actively been involved in the ‘messy’ adoption of the FP7 model grant agreement.

There is absolutely no reason to sow doubts about whether the statutory procedure was followed regarding every single Commission Decisions adopted by the written procedure in 2003 and 2007. In my view, sowing such doubts for each single Decision is not worth the price of not releasing ‘true copies’ of the requested day notes.

IV. OVERRIDING PUBLIC INTEREST

As a citizen, I am deeply disturbed that I am compelled to make the case for an overriding public interest regarding the full release of ‘true copies’ of the day notes the College took note in 2003 and 2007. This is because no exception of Regulation No 1049/2001 is applicable to the day notes.

The argument is based on the premise discussed above that failure to release ‘true copies’ will ‘undermine’ for long time the public’s confidence that Decisions adopted by the written procedure in 2003 and 2007 were indeed adopted in full compliance with the Commission’s Rules of Procedure. For suspended Decisions, in the public’s view the doubts may turn into a high probability that the corresponding Decision was never duly adopted.

Furthermore, failure to release ‘true copies’ will further fuel the doubts about the respect of the applicable procedural rules at the material time about every single Commission Decision adopted in 2003 and 2007 for which the legality of the underlying matters is questionable.

Disrespect of procedural rules is not an arcane and trivial matter. On the very contrary and as the Court of Justice held in the Case C 137P-92 Commission v BASF (paragraphs 76 - 78 are highly relevant to this application) respect of the Rules of Procedure is essential in ensuring the collegiate responsibility of the Commission.

V. CONFIRMATORY APPLICATION

The confirmatory application kindly requests the release of ‘true copies’ of the day notes the College took notice in 2003 and 2007. It is expected that the ‘true copies’ will be very similar to the released ones of the year 2012.

Yours faithfully,

Kostas VITSOS

Dear Secretariat General (SG),

This is to kindly request the Transparency Unit to inform me about the status of registering the confirmatory application lodged via email on 22 August 2013.

I am sure that the Transparency Unit would unreservedly agree that a delay of more than 25 working days to register a confirmatory application is not what the EU legislature had in mind when it enacted that confirmatory applications would be handled promptly.

Furthermore, the present application is closely linked with the GestDem 2013/3651, for which DG RTD has, seemingly, encountered "difficulties" in handling the initial reply within 30 working days since registration. Both the present application and GestDem 2013/3651 will enable to establish, among others, whether the Commission Decision adopting the very first FP7 model grant agreement by the written procedure was properly followed. The delays of the Secretariat-General and DG RTD in handling such applications immediately gives rise to concerns about the underlying matters.

In the light of the foregoing, I would appreciate if the Transparency Unit would promptly register the confirmatory application.

Yours faithfully,

Kostas VITSOS

Dear Secretariat General (SG),

Referring to my email of 2/10/2013, to which the Transparency Unit has not replied, this is to register the applicant's protest for the wholly unacceptable excessive delay of the Secretariat-General to register the confirmatory application, which was lodged on 22/8/2013 and has been ever since in plain public view.

The subject matter of the application is day notes of 2003 and 2007 that are provided for by the Commission's Rules of Procedure and are essential to legal certainty. For totally incomprehensible reasons, the Commission services have stubbornly and unlawfully been refusing to release such day notes pursuant to applications according to Regulation No 1049/2001.

Such an unlawful conduct in plain public view strongly suggests that the Commission services disregard Regulation No 1049/2001 to protect another, apparently more important private interest of the administrative departments, with the private interest having nothing to do with the College or a Member of the Commission. Just to speculate, one possible such private interest is to conceal from the public that one (or more) autonomous Commission Decisions (i.e. without an addressee) supposedly adopted by the written procedure was, in fact, suspended.

The Secretariat-General is both responsible for handling confirmatory applications and also for the drawing up day notes. Failure to release the requested day notes will be tantamount to an admission that in 2003 and in 2007 there are at least two autonomous Commission Decisions adopted by the written procedure tainted by serious irregularities insofar the material Rules of Procedure are concerned, even reaching the point that those two Decisions were never duly adopted.

The applicant finds deplorable that he is compelled to advance such an argument so that the Secretariat-General might register the confirmatory application.

I would therefore reiterate my request that the Secretariat-General register the confirmatory application of 22/8/2013 without further delays.

Yours faithfully,

Kostas VITSOS

Secretaría General de la Comisión Europea

1 Adjuntos

Dear Mr Vitsos,   

 

Thank you for your e-mail dated 22/08/2013, registered on 11/10/2013.  I
hereby acknowledge receipt of your confirmatory application for access to
documents (ref.: Ares(2013)3231155 – gestdem 2013-3660). 

In accordance with Regulation 1049/2001 regarding public access to
European Parliament, Council and Commission documents, you will receive a
response to your request within 15 working days (04/11/2013).

 

Yours sincerely,

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

 

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Secretaría General de la Comisión Europea

2 Adjuntos

Dear Mr Vitsos,

Kindly find the answer to your confirmatory application concerning your
request for access to documents pursuant to Regulation (EC) N° 1049/2001
regarding public access to European Parliament, Council and Commission
documents (Gestdem 2013/3660).
Yours sincerely,
Carlos Remis
SG.B.5.
Transparence.
Berl. 05/329.
 
 
 
 
 
 
 

 
 
 

Dear Secretariat General (SG),

I would like to thank the Secretariat-General for its Decision, document Ares(2013)3330038 - 24/10/2013, concerning the application GESTDEM 3660/2013.

In so far requests R1 to R6 are concerned, it is respectfully submitted that the Decision amounts to a refusal to release the requested documents, entailing an infringement of the duty to state reasons.

With all due respect to the Secretariat-General, the following paragraphs set out the applicant's further observations.

The Decision is not signed by the Secretary-General, even though it appears that typically Decisions on confirmatory applications are signed by the Secretary-General. Regardless of the signatory of the Decision, according to to article 4 of the Commission Decision 937/2001 - OJ 29/12/2001 L 345 page 94 - the Decision was duly adopted under the authority and responsibility of the Secretary-General.

The Secretariat-General released other documents and not the requested day notes, which are expressly stipulated by the Commission's rule of procedure.

In any kind of an administrative procedure, the released day notes would most certainly not be considered as copies of documents. In plain English, a copy of a document is another document produced by a document photocopying or a document scanning device, or at a bare minimum a picture of the documents. The released day notes are most definitely not that kind of "document".

By definition, the released documents are not those 'the College took note' in its meetings, and as expressly stated in the meeting minutes.

The statement of the Decision "... you were provided with scanned versions of the documents" (fourth paragraph of page 2) is manifestly, entirely divorced from reality as far requests R1 to R6 are concerned. No scanned versions of the day notes of 2003 and 2007 were released.

The statement of the Decision "I confirm that the requested documents were provided at the initial stage" (second last paragraph of page 2) is also, manifestly, entirely divorced from reality as far requests R1 to R6 are concerned, because by definition the College could not and did not took note of the released day notes of 2003 and 2007.

The inexplicable failure to release the documents under requests #1 - #6, and the 'excuse' of archival of documents, may give rise to further requests for documents about the document archival policy and plans of the Unit handling the register of Commission's (i.e. the College) documents. This may even reach the point of requesting the pertinent logs of the documented archival system(s) - the logs are electronic documents. In case the logs are 'misplaced', further requests may be lodged for the technical organisation of the document management systems of the aforesaid Unit.

The handling of this application by the Secretariat-General engenders doubts about, firstly, the soundness and quality of the document 'housekeeping' within the Secretariat-General about documents stipulated by the Commission's rules of procedure, and secondly whether some of the Decisions referred to in the withheld day notes are ever adopted in compliance with the Commission's rules of procedure.

Since two thirds of the requested documents were not released, the applicant will mark the status of the application in asktheueu.org as 'Refused'.

Yours faithfully,

Kostas VITSOS