DG RTD presentation of a hypothetical fraud case in NFS workshop 22-24/6/2011, personal data protection, double-funding, plagiarism

La solicitud fue parcialmente exitosa.

Dear Research and Innovation (RTD),

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:

I. PRESENTATION OF A HYPOTHETICAL FRAUD CASE

On 22-24 June 2011 the European Commission and the U.S. National Science Foundation co-hosted an international workshop on managing risks and accountability challenged, “International workshop on accountability in science and research funding”

The summary report is found at http://www.nsf.gov/oig/brussels2011/summ.... Page 10 reads:

[……] External Auditor, European Commission, DG Research and Innovation
Presentation of a Case
[….] presented a hypothetical fraud case, based on elements from an ongoing actual fraud case with the European Commission.

Copies of the following documents held by the Commission services are kindly requested:

1. The presentation of the hypothetical fraud case made at the workshop.

2. Referring to the ‘actual fraud case’, the documents setting out the detailed analysis and reasoning that lead the Commission services to form the view that it was indeed a ‘fraud’ case, that it to say it had or risked having a detrimental effect to the Union’s budget.

The documents requested hereunder under (3) to (12) are meaningful only in case the ‘actual fraud case’ was discovered following one (or more) external financial audit. Reference is made to a single audit and to a single ‘contractor’, but in case several audits and/or several ‘contractors’ were audited, the requests hereunder under (3) to (12) concern all of them.

3. The letter with which DG RTD announced to the ‘contractor’ the external financial audit, including every single annex and the Privacy Statement.

4. The final audit report dispatched to the ‘contractor’, including in particular Annex II.

5. Every single time-sheet in the possession of DG RTD originating from the audit.

6. The DG RTD letters/notes/emails/telephone conversations pursuant to article 12(1) of Regulation No 45/2001 with which data subjects were informed about the collection and processing of their personal data from the audited ‘contractor’.

7. The prior notification of article 25 of Regulation No 45/2001 covering the audit at the time the field audit was conducted. It is noted that DG RTD DPO-3398.1 was filed in mid-April 2011, and therefore it is nearly certain that DPO-3398.1 did not cover the external financial audit in question.

8. The documents drawn up by the DG RTD Data Protection Coordinator setting out a reasoning why the predecessor prior notification (i.e. the one applicable prior to DPO-3398) was not ‘adequate’ for the DG RTD external financial audits and a brand new one were to be registered in the register of article 26 of Regulation No 45/2001 (i.e. DPO-3398).

9. The documents drawn up by the DPO-3398 data controller setting out a reasoning why the predecessor prior notification (i.e. the one applicable prior to DPO-3398) was not ‘adequate’ for the DG RTD external financial audits and a brand new one were to be registered in the register of article 26 of Regulation No 45/2001.

10. Every single document drawn up by the data controller of the predecessor prior notification(s) (i.e. that covering external financial audits prior to 13/4/2011) about the said notification(s), regardless of whether or not external financial audits are expressly dealt with.

11. The Debit Note(s) dispatched to the ‘contractor’, including the cover letters accompanying the Debit Note(s). This request also includes any Debit Notes imposing liquidated damages.

12. The copy of the duly signed Recovery Order on the basis of which the authorising officer or the accounting officer, as the case may be, drew up the Debit Note.

II. DOUBLE FUNDING OF FP7 BENEFICIARIES

DG RTD considers that FP7 beneficiaries may receive double-funding in cases where an FP7 beneficiary also receives funds from other funding agencies or other third party funding organisations (e.g. trusts, foundations, industry sponsors …).

It is not immediately evident that a FP7 beneficiary receiving from DG RTD a re-imbursement of 50% of its research costs, and also some top-up funding from outside the Union budget (e.g. a research trust) is making a profit. Provided that the aggregate funding from all sources is up to 100% of the research costs, in principle, there can be no objection to such double funding arrangements by a FP7 beneficiary.

Copies of the following documents held by the Commission services are kindly requested:

13. The document(s) setting out the analysis and reasoning of the Research family DGs about the risks of double funding of a FP7 beneficiary, regardless of the sources of funding, and their impact to the Union budget.

14. The document(s) setting out some kind of a legal analysis of whether it is lawful to ‘poke’ into the private affairs of a FP7 beneficiary and seek to establish whether or not a FP7 beneficiary receives additional funding, especially in the light of the fact that the FP7 grant agreement is a private law contract and that, apparently, there is no a provision of Union law whatsoever dully empowering DG RTD to carry out interference with the private affairs of a FP7 beneficiary.

III. PLAGIARISM IN FRAUD AGENDA

DG RTD considers plagiarism, i.e. "take, use and pass off the thoughts, writings, inventions, etc. of another person as one's own" as an indicator for double funding. Apparently, the DG RTD rationale is that plagiarism entails the risk of presenting work on other existing or "old, projects for fresh funding. Internally, DG RTD acknowledges that plagiarism is a form of intellectual theft, which is extremely difficult to detect and prove.

While plagiarism is indeed considered as a serious professional misconduct in the research community, it is not immediately evident that in itself plagiarism is always problematic in a FP7 research project. Some reasons are outlined below:

P1. The FP7 grant agreement is a private law contract in which Annex I and Annex II lay down in a detailed and comprehensive manner the rights and responsibilities of the contracting parties. There are numerous provisions in Annex II empowering the Commission for all sorts of checks. Arguably, provided that the Commission has expressly approved a deliverable, it is contractually obliged to pay out the corresponding subsidy. Provided that Annex I is fully complied with and the costs are claimed, DG RTD is obliged to pay out the total contractual amount of the subsidy. Subsequent audits do not change this fundamental contractual arrangement, namely to timely pay out the subsidy according to the contract.

P2. It appears that DG RTD considers also as plagiarism relying on one’s own previous work. For instance, a researcher may base his/her contribution to a contractual deliverable (a few pages) to his/her own published papers. In the scientific community this is definitely not plagiarism. DG RTD considers it as plagiarism, since, apparently, in its view the researcher did not produce original work; reuse of text is a signal of over-claiming hours in the FP7 project. Yet, the contractual responsibilities are laid down in Annex I. In so far a deliverable complies with Annex I, and provided that there is no intellectual theft for third parties to the entire FP7 consortium, liberal copy-pasting from previous work (i.e. plagiarism) cannot in itself be considered as objectionable, not even remotely.

P3. The inappropriate nature of plagiarism is relevant only when a funding sponsor provides research funds and the research organisation is supposed to do original research work. What makes plagiarism objectionable in such a context is that the funding sponsor does not have the ‘tools’ to carry out detailed, low-level checks of the research work; Annex II of the FP7 grant agreement is full of such ‘tools’. When a government agency funds a research institution to carry out original work, its primary output is measured in terms of the quantity and quality of peer-reviewed publications in reputable journals. In such a framework, plagiarism is a serious misconduct as it is essentially blatant intellectual theft. There are other, less offensive forms of ‘intellectual theft, which are nonetheless ‘punished’. For instance, non-original research is refused publication in peer-reviewed journals. What amounts in a scientific paper to a ‘borrowing’ of ideas without any further advancement of science is deemed not worthy of publication. The whole system is geared towards the original research.

P4. The FP7 grant agreements are miles apart from all that. As stated above, everything is laid down in Annex I and Annex II. By the time the final review report is drawn up, the Commission has expressly accepted, partially accepted or rejected, as the case may be, every single deliverable. In addition, by means of the audits, which can be carried out up to 5 years after the end of the project, the Commission can check every detail of the scientific and financial aspects of the project, down to a single Euro.

P5. For publicly available material for which the authors have expressly stated their renunciation of copyright, or subject to license for free copy without the need to declare the source, there can be no question that this is intellectual theft.

P6. Annex II provides for liquidate damages, which may reach in exceptional cases an amount equal to the claimed subsidy; such a case is whet all costs are rejected for ‘unreliable time recording system’ even though signed time-sheets are produced by an audited FP7 beneficiary. Objecting to reusing text from one’s own previous work but simultaneously not finding non-compliance with Annex I, rejecting all personnel costs on the sole account of ‘unreliable time recording system’ in the face of total absence of Union law and a contractual provision about ‘time recording’, are clear signals of taking arbitrary and capricious contractual ‘decisions’.

P7. By introducing plagiarism in its ‘arsenal’ of checks for fraud, DG RTD appears to aim at simultaneously be able to monitor and control research projects in the way University and research centres are awarded research grants by government agencies, and also be able to conduct financial checks as they are conducted in sectors like agricultural subsidies. Those are two completely different worlds, and it is not apparent that it makes sense to simultaneously pursue both. It is virtually certain the DG RTD financial audit campaign, as well as the audits of the Court of Auditors to DG RTD, is solely inspired by the spirit of checks and audits of Union subsidies to sectors like agriculture, where compliance with administrative paperwork reigns supreme.

It is clear that the applicant has serious doubts as to the appropriateness of blindly considering plagiarism as objectionable in the case of ‘reusing’ of one’s own work, or work of the consortium partners, or for the material referred to in P5 above.

That DG RTD has elevated plagiarism to its fraud agenda is in itself a clear signal that there is cause for grave concern about how well DG RTD reviews projects. FP7 projects are reviewed by DG RTD with the assistance independent scientific experts. Those exerts are supposed to be able to identify not only plagiarism, but far more importantly, whether the project complies with Annex I, thereby contributing indirectly something valuable to the Union. This is the essence of Annex I and what the subsidy is about. DG RTD selects projects for funding after highly competitive calls for proposals, so this guarantees that a funded project is supposed to deliver something valuable to the beneficiaries and the Union. Compliance with Annex I is what Union law expressly stipulates in order to pay out the subsidy. Put differently, project reviews are supposed to catch far deeper and important problems than mere plagiarism.

Propelling plagiarism to a fraud agenda is like a the Police adopting a policy of assigning petty crime (e.g. a bag snatch in broad daylight in a shopping mall in front of tens of citizens) to the serious crime squad or to the terrorism squad. In an ordinary Police force, incidents of bag snatching are investigated by normal policemen. Any systematic involvement of the serious crime squad for what are run-of-the-mill bag snatches is a clear signal that there is something terribly wrong with the Police station patrolling the areas of petty crime.

Copies of the following documents held by the Commission services are kindly requested:

15. The document(s) setting out the analysis why plagiarism is to be considered as indicator for double funding.

16. The document(s) setting out the analysis why liberal ‘copy-paste’ of one’s own work, or work of the consortium partners, or the material referred to in P5 above is an indication of double funding.

17. Every single document concerned mainly with the DAISY tool.

******************

OVERRIDING PUBLIC INTEREST

In my view, all requested documents are to be fully released, save the parts covered by article 4(1)(b) and 4(2) first indent of Regulation No 1049/2001. The first one is a mandatory exception.

Requests (3) – (10) are directly concern with compliance with Regulation No 45/2001, that is to say a fundamental right. This makes them subject to the overriding public interest provision.

Requests (1) & (2): Should the actual fraud case, on which the presentation of the hypothetical fraud case was based, had been discovered by external financial audits, it is certain that the audits are tainted by serious breaches of Regulation No 45/2001. The public is entitled to scrutinise the DG RTD conduct, and how the outcome of unlawful conduct (i.e. the audits) ended up being presented as some kind of an accomplishment of DG RTD in a workshop in which several citizens of non Member States had participated.

Requests (11) & (12): The Debit Notes and the Recover Order are fruits of the poisonous three, i.e. the unlawful external financial audit(s). The public is entitled to scrutinise the ensuing DG RTD conduct, in particular how exactly contractual financial claims of the Union in private law contracts are solely based on ‘evidence’ that is in the possession of DG RTD in contravention of numerous provisions of Union law.

Requests (13) & (14): The doubly funding issue is one of the subjects of the anti-fraud strategy of the Research family DGs. The public is entitled to scrutinise the lawfulness of the DG RTD ‘poking’ into the private affairs of FP7 beneficiaries.

Requests (15) & (16): The plagiarism issue is one of the subjects of the anti-fraud strategy of the Research family DGs. In view of the considerations set out under (P1) to (P7) above, the public is entitled to scrutinise the underlying reasoning of DG RTD.

Yours faithfully,

Mr. Sifis RAPTIS

Dear Research and Innovation (RTD),

This is to make enquiries about the status of registering the application.

As it appears, DG RTD has neither acknowledged nor registered the application pursuant to Regulation No 1049/2001, even though six working days have elapsed since it is lodging. It is thus not immediately obvious that DG RTD has complied with article 7(1) of Regulation No 1049/2001 "An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the
applicant.".

I would be obliged if DG RTD would promptly register the application and let me know the GestDem reference number.

Yours faithfully,

Mr. Sifis RAPTIS

Investigación e Innovación

1 Adjuntos

Dear Mr Raptis,

 

Thank you for your e-mail dated 29 June 2013.  We hereby acknowledge
receipt of your application for access to documents, which was registered
on 8 July 2007 under reference number GestDem 2013/3573.

 

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 29
July 2013. In case this time limit needs to be extended, you will be
informed in due course.

 

Yours faithfully,

 

Silvia BOJINOVA

Head of Unit

 

[1]Description: cid:image001.png@01CDDFB2.68871B70

European Commission

DG Research & Innovation

R5

 

ORBN 09/151

B-1049 Brussels/Belgium

+32 229-85891

[2][email address]

 

[3]http://ec.europa.eu/research

 

References

Visible links
2. mailto:[email address]
3. http://ec.europa.eu/research

Investigación e Innovación

5 Adjuntos

Dear Mr Raptis,

We refer to your e-mail dated 29/06/2013 and registered on 08/07/2013
under the above mentioned reference number.

Please find enclose the reply of Directorate-General for Research &
Innovation.

Yours faithfully,

Silvia BOJINOVA

Head of Unit

 

[1]cid:image001.png@01CDF26F.EF7D9990

European Commission

DG Research & Innovation

R5

 

ORBN 09/151

B-1049 Brussels/Belgium

+32 229-85891

[2][email address]

 

[3]http://ec.europa.eu/research

 

 

References

Visible links
2. mailto:[email address]
3. http://ec.europa.eu/research

Dear Research and Innovation (RTD),

Pursuant to article 8 of Regulation (EC) No 1049/2001 (hereafter ‘the Regulation’) a confirmatory application is hereby submitted. According to the Commission Decision (EC, ECSC, Euratom) 937/2001 published in the OJ L 345/94 of 29/12/2001 the Secretariat-General will assume the responsibility to handle it and therefore it is to be transferred to it.

This confirmatory application concerns all requests, save those under (3) to (6). It, first, discusses the DG RTD initial reply and refutes the arguments regarding the total refusal to release the presentation at the NSF Symposium. Then it goes on to argue that it is impossible to accept that DG RTD found no documents regarding several of the requests of the initial application, also noting that in some respects the initial reply has grossly overlooked the spirit and letter of the Regulation. The argument about the existence of documents, which were not disclosed and released, is based on a reasoning about the legal responsibilities of DG RTD and what sound administration dictates in terms of documenting administrative work, practices and procedures. Failure to draw up such documents is tantamount to a grossly substandard administrative practice going on for years, not even found in seriously understaffed tiny administrative departments and agencies of the Member States. It goes without saying that it wholly incompatible with the expected conduct of administrative departments of the guardian of the Treaties.

In the framework of this confirmatory application the Commission services and the general public will keep in mind the immense scale of the manifest infringements by DG RTD of Regulation No 45/2001 in FP6 & FP7 that culminated in the false declarations of the prior notification RTD DPO-3398 about the purported, yet non-existent, EDPS consultations about it and that DPO-3398.3 stated for some time in 2012 that no subcontractors were engaged in external financial audits.

1. TOTAL REFUSAL TO RELEASE THE PRESENTATION MADE AT THE NSF SYMPOSIUM – REQUEST UNDER (1) & REQUEST UNDER (2)

This section analyses the DG RTD initial reply to requests under (1) & (2).

1.1. RELIANCE ON ARTICLE 4(1)(a) FOURTH INDENT OF THE REGULATION ‘FINANCIAL POLICY’

The DG RTD reliance on that provision is based on the following premise (top of page 3 of initial reply):

‘The financial policy of the Union (formerly the Community) can be understood as relating to the proper management of funds of the EU. It is a policy aimed at protecting the financial resources managed by the Commission by way of audits of beneficiaries of grants and other subcontractors’.

Such a premise is indeed a huge leap of logic, as it equates the protection of the Union’s ‘financial interests’ with the Union’s ‘financial policy’. Such an argument is not worthy of a first-year student reading Law or Economics, and infinitely more so when it is advanced by an administrative department of the guardian of the EU Treaties for the sole purpose of ‘creating’ justifications out of thin air to totally refuse access to documents.

The Commission services are referred to an excellent elaboration of the differences between the Union’s ‘financial policy’ and the ‘financial interests’ in the confirmatory application GestDem No 2013/3375 of 31/7/2013 that is available to the public in http://www.asktheeu.org/en/request/dg_cn..., section 3.1. An adaptation of the arguments of that confirmatory application is present below:

- As stated above ‘financial interests’ are very distinct from the ‘financial
policy’.

- In actions before the General Court about Regulation No 1049/2001 about the release of DG COMP documents (directly concerned with anti-trust and mergers investigations), the Commission has not advanced arguments about article 4(1) fourth indent and the public interest regarding the ‘Union’s economic policy’.

- If for documents drawn up or obtained in the framework of an administrative procedure pursuant to Union law (e.g. DG COMP relying on Regulation 1/2003) DG COMP does not rely on article 4(1)(a) fourth indent to refuse access, a fortiori DG CNET cannot rely on this provision to refuse access to an abstract organisation of an
anti-fraud policy which is itself based on contractual audits.

- The Members of the Commission responsible for the financial policy are those dealing with the policy areas of: (i) Financial Programming and the Budget, (ii) Taxation and Customs Union, Audit and Anti-Fraud and (iii) Administrative Affairs, Audit and Anti-Fraud. Which exactly are the administrative departments of the Commission assisting the Members of the Commission in those matters is self-evident. DG CNET is most certainly not one of them.

- The Directorates-General and their tasks have either an one-to-one or a very close correspondence with the TFEU articles. Just looking at the table of contents of TFEU, it becomes obvious that the Union’s research and technological policy is absolutely
distinct from the ‘financial policy’. In my opinion and out of respect to the Members of the Commission and their sphere of responsibilities, DG RTD – as an administrative department - ought not to even dare think to ‘encroach’ in the spheres of responsibilities of other Directorates-General in order to lend support to its unlawful refusal to grant total access to the requested NSF Symposium presentation

In my opinion, prior to even contemplate reliance on article 4(1)(a) forth indent DG RTD ought to have spent some time making a rudimentary analysis what are the responsibilities of the Directorate-General Economic and Financial Affairs and the respective Commission Vice-President. Spending half an hour glancing at publications like the one entitled ‘Financial operations and instruments in support of EU policies’ found at http://ec.europa.eu/economy_finance/fina... will illustrate to DG RTD the absolutely erroneous reliance on article 4(1)(a) fourth indent to totally refuse access. By and large, no policy or action of DG RTD is covered by that article. Consequently, DG RTD should, in my view, be much less careless in its desperate attempts to create an edifice of legality to refuse access to documents.

1.2. MUTUALLY DESTRUCTIVE RELIANCE ON ARTICLE 4(1)(a) FOURTH INDENT OF THE REGULATION, CONTRAVENTION OF ARTICLE 339 TFEU

DG RTD has, apparently, not realised that reliance on that article to refuse access automatically implies that the presentation at the NSF Symposium ought not to have taken place at all. As DG RTD has rightly observed, the prohibition of the release of a document covered by article 4(1)(a) is absolute. The prohibition does not concern a few sheets of paper and the words on it. It solely concerns the information the document contains.

The divulging at the NSF Symposium of information covered by article 4(1)(a) is automatically an infringement of the professional secrecy obligations by DG RTD officials, that is to say article 339 TFEU. The Commission services must take into full consideration of what information is protected by professional secrecy by examining, inter alia:
- Articles 7(2) and 7(3) of the Regulation of the European Parliament and the Council (EC) 882/2004 of 24/9/2004
- Paragraphs 29 – 34 and 71 - 74 of the Judgment of the Court of First Instance in the Case T-198/03, Bank Austria Creditanstalt v Commission

The arguments of DG RTD of having requested the NSF not to publish the presentation in the Symposium proceedings, not even a summary thereof, does alter the substance of a disclosure to citizens of non-EU Member States and in a private establishment (the Symposium venue) of information protected by article 339 TFEU. These citizens are not members of a privileged group of individuals to which Union law has afforded special treatment by way of suspending the applicability of article 339 TFEU towards them.

Consequently, the reliance of DG RTD on article 4(1)(a) forth indent regarding its total refusal for access necessarily implies that DG RTD officials contravened article 339 TFEU by way of making the presentation. In case the presentation is not fully released in the confirmatory application, the Commission services, with the agreement of the Legal Services, will have essentially admitted the contravention of article 339 TFEU by way of making the presentation.

1.3. RELIANCE ON ARTICLE 4(2) THIRD INDENT

According to the DG RTD:

‘As previously stated, the documents related to the presentation in question are based on real cases of alleged fraud which are actually being handled by DG RTD, by OLAF and by the judicial authorities. Any public disclosure of this information would not only undermine the protection of the on-going cases but would also endanger the proper investigation of future cases. Such information could even inspire future fraudulent behaviour, as the examples given could be misused in attempts to circumvent regular controls in future’

It is simply beyond belief that DG RTD had advanced arguments about (i) OLAF’s handling of the case and (ii) referral to national authorities to totally refuse access. The wholesale amateurish nature of such an argument is truly astonishing. In my opinion, DG RTD must consult OLAF and the Legal Services to ‘educate’ itself about the provisions of Union law regarding OLAF’s investigations and forwarding to national authorities of information about alleged ‘fraud’.

Regulation (EC) No 1073/1999 establishing OLAF has several provisions about the professional secrecy obligations of internal and external investigations. That Regulation, and also Regulation No 2985/1996, make absolutely clear that information OLAF obtains in such investigations is to be forwarded only to the competent national authority and to the Institution officials who are strictly required to know it in order to protect the Union’s financial interest. Divulging of such information to other third parties, and much more to non-EU Member States citizens in a private establishment (Symposium venue), is automatically a contravention of article 339 TFEU.

Consequently, reliance on article 4(2) third indent to totally refuse access necessarily implies that DG RTD officials contravened article 339 TFEU by way of making the presentation.

Finally, the arguments about a discourse of the presentation risking providing useful information to ‘would-be FP7 fraudsters’ are not even worth seriously discussing. Fraud is not prevented by concealing from the public its instances. OLAF routinely makes press releases about criminal charges of national authorities to the detriment of the Union’s financial interests for which OLAF played an active role in their investigation; OLAF also partially releases final case report pursuant to the Regulation. The DG RTD logic would have prohibited the issuance of such press releases and partial disclosure of final case reports. After all, if DG RTD felt so proud to make the presentation at the Symposium, the public and the taxpayers are also entitled to be informed about the DG RTD accomplishments in defending their financial interests and legality.

1.4. REQUEST UNDER (2)

Since the alleged ‘fraud’ was not uncovered in the context of an external financial audit, it is difficult to appreciate that no documents were drawn up establishing it. It cannot be accepted that a few lines were not drafted.

The DG RTD initial reply has to be interpreted as a total refusal for access with no statement of reasons.

1.5. CONCLUSION

By not fully releasing the presentation the Commission services will admit the contravention of article 339 TFEU. In my view, the Commission services are to opt between the lesser evil, namely either ‘expose’ DG RTD by releasing the presentation or withhold it and let the applicant and the public draw the inevitable conclusions.

2. REQUEST UNDER (7) PRIOR NOTIFICATION COVERING DG RTD EXTERNAL FINANCIAL AUDITS

The released prior notification DPO-3398.1 states in the first page top let field ‘Creation’ ‘13/04/2011’. The initial application argued that other prior notification(s) must have covered the DG RTD external financial audits prior to April 2011. The initial reply is silent about these predecessor prior notifications. Therefore, the DG RTD initial reply is an implied total refusal to release the requested prior notification, with no reasons to explain the total refusal.

Furthermore, the released DPO-3398.1 is not the same with DPO-3398.1 found at the public register of article 4(4) of Commission Decision 2008/597/EC, OJ L 193/7 of 22/7/2008. The annex herein gives a full copy of DPO-3398.1 as found in the public register in 2011. Section 26 of the publicly released DPO-3398.1 reads (see annex):

‘26) External Company or Directorate General to which the Processor is attached:
1. RTD
2. RTD
3. Contractors of the RTD framework contracts for external audits. ’

Yet, the released DPO-3398.1 states ‘3. Processors N.A N.A|N.A N.A|N.A N.A’. It is clear that DG RTD had been in a state of total confusion regarding the engagement of processors within the meaning of Regulation No 45/2001. DPO-3398.1 states ‘This processing has been submitted to the EDPS who concluded that Article 27 is not applicable’, which is a false statement. The proof is found in the publicly available EDPS letter C2013-0714 of 17/7/2013 that concerns the DG INFSO DPO-3338.1 (point 5 of the EDPS letter, page 5); it is corroborated by the answer of the Data Protection Officer of 5/7/2013 about DG ENTR DPO-3334.1 found at http://www.asktheeu.org/en/request/exten... since both DG INFSO and DG ENTR have a false statement, the inescapable conclusion is that DPO-3398.1 has the same false statement. It must be concluded that the released DPO-3398.1 is a document some parts of which were specifically edited by DG RTD for the purposes of the present application; it not a true copy of DPO-3398.1 entered in the article 26 of Regulation No 45/2001 register or processing operations, either in the public or the Commission’s intranet versions of this register.

The inevitable conclusion is that in DPO-3398 DG RTD has been in the business of deceiving the public, making false declarations in statutory instruments, undertaking personal data processing operations without a legal basis whatsoever in Union law, reaching the point of having a very elastic interpretation of what article 16(1) TFEU, Regulation No 45/2001 and legality are about.

The confirmatory application regarding request under (7) is about the release of the predecessor of DPO-3398.1 prior notification(s) covering the DG RTD external financial audits.

3. REQUESTS UNDER (8), (9) and (10)

There can be no confidence whatsoever about the truthfulness in any statement of DG RTD about its external financial audits and the underlying personal data processing. Moreover, it is fully right to regard DG RTD as being very economical with the truth about those matters. Put differently, in that particular field of activities there are good reasons to suspect that DG RTD will either conceal the existence of documents or ‘doctor’ the released ones, as it has done with DPO-3398.1.

DG RTD is fully aware that the DG RTD Data Protection Coordinator has drawn up documents about DPO-978, DPO-2382 and DPO-3398, which were communicated inter alia to the Commission’s Data Protection Officer.

DG RTD has impliedly totally refused to release the requested documents. The confirmatory application kindly requests that, first, the Commission services examine the matter independently from the DG RTD position about the non-existence of documents and, second, in formulating their confirmatory reply consider the public standing of the Commission itself as the guardian of the Treaties.

4. REQUESTS UNDER (11) AND (12) – DEBIT NOTES & RECOVER ORDERS

In case any funds were disbursed to the allegedly ‘fraudulent’ participants to FP6 or FP7 actions, the Commission services have been under an unquestionable and absolute legal obligation to recover the unduly paid amounts. In this respect, the drawing up of recovery orders and debit notes is of the essence. Failure to do so in not only reckless disregard of duty, but it has also exposed the DG RTD Authorising Officer(s) to disciplinary liabilities according to Regulation No 1605/2002 (as amended) and the Staff Regulations.

There is an absolute binary choice between the following two alternatives:

-Funds were indeed disbursed, in which case recover orders and debit notes were unavoidably drawn up by DG RTD wishes to conceal them. Even if the alleged ‘fraudsters’ voluntarily returned the full amounts, they did so in response to debit note(s).

- No funds were disbursed, in which case the alleged ‘fraud’ is closely associated with a DG RTD proposal evaluation(s). If this is the case, this calls immediately into question the role of several DG RTD officials who were in charge of the respective proposals evaluation. It implies that there has been an OLAF internal investigation.

Once again, it is noted that DG RTD has not only been economic with the truth but it has been deceitful with DPO-3398. In examining the confirmatory application the Commission services are to bear in mind this conduct.

5. REQUESTS UNDER (13) TO (16), DOUBLE FUNDING & PLAGIARISM

In my view, the released documents ‘Commission's Charter for Researchers’ and the ‘European Science Foundation's European Code of Conduct for Research Integrity’ that ostensibly concern requests (15) and (16) are irrelevant to the documents applied for. The application concerns plagiarism in the fraud agenda of DG RTD. Consequently, the released documents, although informative, are immaterial to the present application.

DG RTD is fully aware that the double funding & plagiarism issues are discussed at some length in the common anti-fraud ‘policy-strategy’ of the Research family DGs. Discussing them at an inter-services ‘policy-strategy’ document does not come out of the blue.

While an applicant cannot prove the existence of a document in an application pursuant to the Regulating, an administrative department of the Commission does not have a free hand to conceal from the public documents at its own pleasure. This applies a fortiori to administrative departments having policies of gravely disregarding article 16(1) TFEU and Regulation No 45/2001, with the ‘cherry on top’ the false and deceitful declarations of DPO-33981.

It is also worth bearing in mind that in case such an application is subject to an action before the General Court, DG RTD officials may be examined under oath, in which case they may be more forthcoming with the truth.

The confirmatory application kindly request that the Commission services examine the matter independently from the DG RTD position about the non-existence of documents.

6. REQUEST UNDER (17) - DAISY TOOL

As a preliminary point, the Regulation concerns documents ‘held’ by an Institution and not documents held by third parties. Pointing an applicant to a website of a third party is not compliant with the Regulation.

The DG RTD reply implies that the ‘Daisy tool’ is itself an implementation based on IBM’s iBase software application. Yet IBM iBase is absolutely irrelevant to tools used to detect plagiarism; to a large extend iBase is about visual representation of suspects of ‘fraudulent’ behavior. Therefore, the DG RTD reply to request under (17) is also misleading.

It must be concluded that the DG RTD reply is a total refusal of the ‘Daily tool’ documentation without a statement of reasons.

It is noted beforehand that any assertion that no documents exist about the ‘Daisy tool’ will not be credible at all. Since no exception of article 4 of the Regulation is conceivably applicable to the ‘Daisy tool’, in handling the confirmatory application the Commission services are obliged to diligently search for the relevant documents and fully release them.

7. OVERRIDING PUBLIC INTEREST

The corresponding arguments set out in the initial application are incorporated by reference in the present confirmatory application. The manifestly unlawful conduct of DG RTD outlined above, i.e. the aforementioned grave infringements of Regulation No 45/2001 and the false declarations, and the above arguments about contraventions of article 339 TFEU further lend support to an overriding public interest case.

**** ANNEX *****

Notification to the Data Protection Officer DPO-3398 version 1

1) Date of submission:
26-May-11

2) Name and First Name of the Controller:
BISCONTIN Franco

4) Directorate, Unit or Service to which the Controller is attached:
M

5) Directorate General to which the Controller is attached:
Research
This notification is a sub-notification of:

6) Name of Processing:
External audit and control

7) Description of Processing: Attention: Please describe in the answer to this question if you process personal data falling under article 27 "Prior-Checking (by the EDPS - European Data Protection Supervisor)"

The processing operations are described in the procedure guide of ex-post control which is the result of a sampling methodology of financial transactions.
http://www.cc.cec/budg/dgb/interdg/_doc/...
http://www.cc.cec/budg/dgb/interdg/epc/l...
Specific IT tools used in the context of performing an external financial audit are described below:

• A specific tool allowing the exchange of lists of projects (for an auditee) between DGs, supporting life-cycle management of individual audit and extrapolation cases and containing a summary of the audit conclusions. No personal data are processed except contact information of Commission staff and auditees.

• A specific tool to facilitate searching and visualisation of information about participants in grants and contracts. This is used by auditors in the selection, preparation and performance of audits. The tool uses information on participants in grants and contracts, taken from IT tools for programme management notified to the DPO under n° DPO-978 (front-end) and DPO-2382 (back-office),. This information includes details of organisation names, registration numbers, address, audit results, EWS status, phone, fax, email, names of authorised signatories and contact persons, project reference, acronym, funding, budget.

11) Legal basis of Processing:
The possibility for the EC to carry out checks and financial controls is foreseen in the model grant agreement or contract signed between the EC and the beneficiary/contractor as required by the Financial Regulation ("FR") applicable to the General Budget of the European Communities (art. 170, 60.4), and its Implementing Rules ("IR") (art. 47.4):

• Art. 170 FR: Each financing agreement or grant agreement or grant decision must expressly provide for the Commission and the Court of Auditors to have the power of audit, on the basis of documents and on the spot, over all contractors and subcontractors who have received Community funds.
• Art. 60.4 FR: The authorizing officer by delegation shall put in place, in compliance with the minimum standards adopted by each institution and having due regard to the risks associated with the management environment and the nature of the actions financed, the organizational structure and the internal management and control procedures suited to the performance of his/her duties, including where appropriate ex post verifications. Before an operation is authorized, the operational and financial aspects shall be verified by members of staff other than the one who initiated the operation. The initiation and the ex ante and ex post verification of an operation shall be separate functions.
• Art. 47.4 IR: The ex post verifications on documents and, where appropriate, on the spot shall check that operations financed by the budget are correctly implemented and in particular that the criteria referred to in paragraph 3 are complied with. These verifications may be organized on a sample basis using risk analysis.

12) Lawfulness of Processing: Answering this question please also verify and indicate if your processing has to comply with articles 20 "Exemptions and restrictions" and 27 "Prior checking (by the EDPS)"
The processing operations on personal data carried out in the context of ex post controls are necessary and lawful under three articles of the Regulation (EC) 45/2001:
• article 5 (a): processing is necessary for the performance of a task carried out in the public interest on the basis of the Treaties establishing the European Communities or other legal instruments adopted on the basis thereof…
• article 5 (b): processing is necessary for compliance with a legal obligation to which the controller is subject
• article 20.1.b): necessary measure to safeguard:
• (a) the prevention, investigation, detection and prosecution of criminal offences;
• (b) an important economic or financial interest of a Member State or of the European Communities, including monetary, budgetary and taxation matters;
• (c) the protection of the data subject or of the rights and freedoms of others;
This processing has been submitted to the EDPS who concluded that Article 27 is not applicable.

13) Purpose(s) of Processing:
Checks and financial controls of grant agreements or service contracts aim at verifying beneficiary's or contractor's or subcontractors' or third parties' compliance with all contractual provisions (including financial provisions), in view of checking that the action and the provisions of the grant agreement or contract are being properly implemented and in view of assessing the legality and regularity of the transaction underlying the implementation of the Community budget.

14) Data Subject(s) concerned:
Contractors and sub-contractors
Beneficiaries of grants
Staff
Experts

15) Information to the data subjects:
1 Attachment(s)
a) Which kind of communication(s) have you foreseen to inform the Data Subjects as described in articles 11 - 12 under 'Information to be given to the Data Subject'

The Privacy Statement attached is available with the Commission's letter initiating the control process.
b) Which procedure(s) did you put in place to enable Data Subjects to exert their rights: access, verify, correct, etc., their Personal Data as described in articles 13 - 19 under 'Rights of the Data
Subject' :
Functional mailbox to get information and mailbox of the EDPS to lodge a complaint (see Privacy Statement):
[email address]

16) Category(ies) of Data Subjects:
See point 14)

17) Data field(s) of Data Subjects: Attention: Please indicate and describe in the answer to this question also data fields which fall under article 10
All necessary data to efficiently conduct a control such as:
• Name,
• Function,
• Grade,
• Activities and expertises,
• Professional address,
• Timesheets,
• Salary,
• Accounts,
• Cost accounting,
• Missions,
• Information coming from local IT system used to declare costs as eligible,
• Supporting documents linked to travel costs,
• Minutes from mission and other similar data depending of the nature of the action.
No data which fall under article 10.

18) Category(ies) of data fields of Data Subjects: Attention: Please indicate and describe in the answer to this question also categories of data fields which fall under article 10
See point 17).

20) Recipient(s) of the Processing:
Collected personal data could be submitted to Commission services in charge of ex post controls, without prejudice to a possible transmission to the bodies in charge of a monitoring or inspection task in accordance with Community law (OLAF, Court of Auditor, Ombudsman, EDPS, IDOC, Internal Audit Service of the Commission).

21) Category(ies) of recipients:
See point 20).

22 a) Retention policy of (categories of) personal data
Each ex post controller is responsible of archiving the documents related to controls. Data are stored until 10 years after the final payment on condition that no contentious issues occurred; in this case, data will be kept until the end the last

22 b) Time limit to block/erase data on justified legitimate request from the data subjects
The Commission services will respond within 15 working days to any request and if this is considered justified the relevant correction or deletion will be performed within one calendar month.

22 c) Historical, statistical or scientific purposes - If you store data for longer periods than mentioned above, please specify, if applicable, why the data must be kept under a form which permits identification
N.A.

25) External Company or Directorate, Unit or Service to which the Processor is attached:
1. M
. 1
2. M
. 2
3. .
.
26) External Company or Directorate General to which the Processor is attached:
1. RTD
2. RTD
3. Contractors of the RTD framework contracts for external audits.

27) Legal foundation of transfer: Only transfers to third party countries not subject to Directive 95/46/EC (Article 9) should be considered for this question. Please treat transfers to other community institutions
and bodies and to member states under question 20.
N.A.

28) Category(ies) of Personal Data or Personal Data to be transferred:
N.A.

****** END OF ANNEX ******

Yours faithfully,

Mr. Sifis RAPTIS

Investigación e Innovación

L'activité des services de la Commission européenne étant réduite durant
le mois d'août, vos demandes d'accès aux documents seront traitées dans
les meilleurs délais. Toutefois, certains retards peuvent se produire, en
particulier lorsque le traitement des données exige la consultation des
administrations nationales, d’organisations extérieures ou d’autres
services.

*  *  *

Die Tätigkeiten der Dienststellen der Europäischen Kommission sind im
August reduziert; Ihre Anträge auf Zugang zu Dokumenten werden dennoch so
schnell wie möglich bearbeitet. Allerdings können Verzögerungen auftreten,
insbesondere wenn die Berarbeitung der Anträge die Konsultierung der
nationalen Verwaltungen, externer Organisationen oder anderer
Dienststellen erforderlich macht.

* *  *

The activity of European Commission departments is likely to be reduced
during August.  We will handle  your requests for access to documents as
soon as possible.  However, some delays may occur, especially where the
processing of data requires the consultation of national administrations,
external organisations or other services.

 

Investigación e Innovación

1 Adjuntos

Dear Mr Raptis,   

 

Thank you for your e-mail dated 22/08/2013, registered on 13/09/2013.  I
hereby acknowledge receipt of your confirmatory application for access to
documents (ref.: Ares(2013)3041028 – gestdem 2013-3573). 

 

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 (04/10/2013).

 

Yours sincerely, 

 

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

 

 

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Investigación e Innovación

2 Adjuntos

Dear Mr Raptis,
Kindly find herewith a letter concerning your confirmatory application for
access to documents (gestdem 2013-3573).
       
Yours sincerely,
 
Paul SIMON
Unit SG.B.5, Transparency
European Commission
 

Investigación e Innovación

2 Adjuntos

 
Dear Mr Raptis,

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 2013/3573).
Yours sincerely,
Carlos Remis
SG.B.5.
Transparence.
Berl. 05/329.
 
 
 
 
 
 
 

 
 
 

Dear Research and Innovation (RTD),

Please forward this email to the Transparency Unit. It concerns the confirmatory application GestDem 2013/3573.

---------------------------------------

Dear Madam, Sir,

Referring to the confirmatory application GestDem 2013/3573 this is to make enquiries about the status of the response, and to point out further evidence that emerged after the submission of the application supporting the overriding public interest for full disclosure.

****

On 25 October the Transparency Unit informed me (Ref. Ares[2013] 3339377) that more time was needed to come to a conclusion. More than 25 working days later there are no news.

****

In the case T-483/13, Oikonomopoulos v Commission, the applicant has alleged that OLAF had infringed many provisions of Union law, including a misuse of powers. The Order of 27 November 2013 dismissing the application for interim measures reveals that the OLAF investigation was triggered by an external financial audit of the FP6 contractor Zenon, a Greek company specialising in robotics. A few Google searches show that Zenon was in more than 10 DG RTD FP6 projects and a few DG INFSO ones.

It is therefore conceivable that the presentation at issue concerns the Greek company Zenon. Since the audit was conducted in 2008, it follows that the audit firm that conducted the audit is the Greek audit firm - member of the Polaris Group of independent auditors. This adds another dimension of illegalities, as until the mid-2012 (if not until today) that audit firm had not filed a prior notification to the Data Protection Authority of Greece under article 6 of Law 2472/97. The audit of Zenon was conducted in 2008 and DG RTD had publicly admitted in asktheeu.org that no prior notification was covering until April 2011 (when DPO-3398.1 was filed) its external financial audits. Also DPO-3398.1 states that no subcontractors were to be used. Consequently, the audit firm cannot be considered as a processor, meaning that it acted as a data controller in the Zenon audit. It necessarily follows that in the audit of Zenon the Greek audit fir, further infringed a few other articles of Law 2472/97.

Even if the presentation at issue does not concern an underlying audit in Greece, every single external financial audit of DG RTD has infringed the national personal data protection legislation. The case of audit firms established in the U.K. is examined in the next paragraph.

A search of the Data Protection Register of the U.K. Information Commissioner's Office reveals that the two U.K. audit firms that have carried out dozens of audits of FP6 contractors and FP7 beneficiaries have NOT notified the Commissioner about their personal data processing in the context of audits pursuant to FP6.II.29 and FP7.II.22. In view of article 57(2) of Regulation 1605/2002 prohibiting to private-sector entities the exercise of powers entailing prerogatives of a public authority, the contents and timing of DPO-3398.1, and the contractual nature of the audits, it is self-evident that those two U.K. audit firms have infringed the U.K. Data Protection Act 1998 in every single external financial audit. Another interesting thing is that those two U.K. audit firms have carried out FP6 & FP7 field audits in countries like Cyprus and Greece, which means that they have infringed the laws of those two countries as well.

In the application GestDem 2013/3824 (submitted by another citizen) the applicant has claimed in an email of 2 December, http://www.asktheeu.org/en/request/fp6_f..., that in external investigations under Regulation 1073/99 of FP6 contractors OLAF has been infringing Regulation 45/2001.

In so far the present confirmatory application is concerned and assuming the presentation discusses a DG RTD external financial audit, it is nearly certain that the underlying substance lies at the juncture of illegal personal data processing conducted by both DG RTD and OLAF. One of the reasons DG RTD justified its total refusal to disclose the documents at issue is that the underlying case was forwarded to OLAF. It turns out that what DG RTD forwarded to OLAF is most likely personal data in the possession of DG RTD, whereas the DG RTD processing of personal data is tainted by grave infringements of both national and Union law on personal data protection. OLAF further processed personal data and forwarded to national authorities personal data illegally in the possession of the DG RTD and OLAF. This is, in turn, an infringement of several provisions of Regulation 1073/99 by OLAF.

The applicant points our that in a Union governed by the rule of law, such conduct is simply beyond belief.

In view of the above considerations, the applicant submits that his arguments for an overriding public interest to fully disclose the documents at issue (except the parts enabling the identification of legal and natural persons) are compelling. The reason is to subject the DG RTD illegal conduct to public scrutiny.

*****

I would be obliged if the Transparency Unit would, firstly, let me know the status of the response, and secondly, have due regard of the above.

Finally, the Secretariat-General and the Legal Services must be aware of dangers of administrative departments becoming untethered to accountability, especially departments of the Guardian of the EU Treaties that will manage tens of billions of Euro in Horizon 2020.

Yours faithfully,

Mr. Sifis RAPTIS

Dear Research and Innovation (RTD),

Please forward this email to the Secretariat-General.

---------------------------------

Dear Transparency Unit,

I refer to GestDem 2013/3573, the letter Ares(2013)3339377 - 25/10/2013, and my email of 7/12/2013 http://www.asktheeu.org/en/request/dg_rt....

As it appears from the asktheeu.org website, nearly three months after the 25th of October 2013 there have been no developments in the administrative procedure of Regulation 1049/2001.

Due regard is to be had to the risk-based audits of the DG INFSO - the 'brother in arms' of the DG RTD risk based audits - and to what absurd steps the Commission services have taken to prevent further disclosure of the grave illegalities such kind of audits have invariably entailed. The foremost example is the letter of the President of the European Commission to the Ombudsman, Ares(2013)2952891 - 30/08/2013 http://www.asktheeu.org/en/request/583/r..., where DG CNECT caused the President to misrepresent elementary facts, apparently in order to avoid the Ombudsman to grant access to a presentation entitled 'Risk-based audits' on 18/2/2011 by the former Head of the S.5 Unit of DG INFSO.

The above suggest that for GestDem 2013/3573 the Commission services are yet again attempting to frustrate the citizens' rights of access to documents held by Institutions, just in order to conceal the unlawful nature of the risk-based audits of the Research DGs.

I would therefore be obliged if the Transparency Unit would inform me the status of the response to the confirmatory application.

Yours faithfully,

Mr. Sifis RAPTIS

Dear Research and Innovation (RTD),

Please forward this email to the Secretariat-General. It concerns the confirmatory application GestDem 2013/3573.

---------------------------------

Dear Transparency Unit,

I refer to the application GestDem 2013/3573 and the correspondence about it, http://www.asktheeu.org/en/request/610/r..., http://www.asktheeu.org/en/request/dg_rt..., http://www.asktheeu.org/en/request/dg_rt....

This is to respectfully submit my protest for the inexplicable failure of the Transparency Unit to reply to the emails of 7/12/2013 and 23/1/2014 expressly making enquiries about the status of the reply to the confirmatory application.

I would therefore expect that the Transparency Unit will promptly inform me about the status of the reply.

Yours faithfully,

Mr. Sifis RAPTIS

Investigación e Innovación

Dear Sir,

I refer to your confirmatory application for access registered under Gestdem number 2013/3573.

We regret that the treatment of your confirmatory request has known some delay, due in particular to internal reorganisation and restructuring of the Secretariat-general.

However, I am pleased to inform you that a draft decision has been submitted to our Legal Service, and that once the Legal Service opinion has been received the draft decision will be submitted to our hierarchy (Head of Unit, Director, Deputy Secretary-General and Secretary-General) for approval.

This process may still take up to an estimated three weeks.

Please be assured however that we have tried - and will continue to do so - our utmost to provide you with a reply within the shortest possible deadlines.

We hope that the delay in the treatment of your application has not caused too much inconvenience to you.

Our apologies again and thank you very much again for your patience.

Kind regards,
Priscille Schiltz
European Commission
SG B4 - Transparency, 'Access to documents'

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Investigación e Innovación

1 Adjuntos

Dear Mr Raptis,
 
Please find attached a letter concerning your confirmatory application for
access to documents (GestDem 2013-3573).
 
Kind regards,
 
Unit B4 "Transparency"
Secretariat General
European Commission
 

Dear Research and Innovation (RTD),

I would like to thank the Secretariat-General for the response to the confirmatory application GestDem 2013/3573, http://www.asktheeu.org/en/request/610/r....

Since the Secretary-General did not provide access to the presentation at the NSF conference on the grounds (second last paragraph of page 5) 'Under these circumstances, public access to the referred document would have a detrimental impact on the audit and investigation capacity of the Commission', I feel necessary to make the following comments:

1. The grounds relied upon to refuse access are tantamount to an admission that the DG RTD official who made the presentation disclosed to tens of individuals information of the kind having a 'detrimental impact on the audit and investigation capacity of the Commission'. One expects that he will be requested to provide an explanation about such an infringement of the Staff Regulations.

2. In the framework of the external financial audits of the Research DGs, the public interest is NOT served when the Research DGs process personal data of third parties to an audited FP6 or FP7 project and in contravention of Regulation 45/2001. That in order to deceive the public DG RTD drew up the deceitful prior notification DG RTD DPO-3398 proves that the public interest has been harmed.

3. Moreover, the audits have inflicted further damage to the public interest because the audit 'agenda' of the Research DGs has generated a great deal of friction with the research community.

4. In this application, there has been no issue about an infringement of my rights under Regulation 45/2001; if that were the case, then a complaint to the EDPS or legal action under article 340 TFEU would have been pursued. The sole issue has been the granting of access to documents proving the infringement of the fundamental right of personal data protection.

Yours faithfully,

Mr. Sifis RAPTIS