EU Fundamental Rights Agency duties and obligations to be transparent towards EU public

Dear Director of European Union Agency for Fundamental Rights,

Thank you for your reply provided under this link
http://www.asktheeu.org/en/request/reque...

As to your paragraphs below, please find my replies:

Your question:

“Please kindly note that there are still outstanding issues to clarify with you regarding the legitimacy of your request for access to documents over the Case F-58/10 and the Case T-397/11 (referred to in your e-mail of 17/05/2013)”.

My reply of 05.06.2013:

I am an EU citizen, domiciled and living in a country of the EU. The Council Regulation 1049/2001 does not require that I have to specify the scope of my request. If something in my research is improper or unlawfully requested, please feel free to make me aware. However, I re-read the texts and they are within the provisions of EU legislation. As to your request to ask me to provide you with my ID documents, please refer to your Legal Team.

Your question:

“As you may know, the Agency shall take into consideration the limits imposed by the Union legislation in a matter where the personal data have to be protected. As established by the European Court of Justice in the Bavarian Lager judgement (Case C-28/08), referring to the provisions of Article 8 (b) of Regulation (EC) No 45/2001 on the protection of individuals with regard to the personal data, it does not suffice for the recipient to simply invoke the general interests of transparency when requesting access to a document which contains personal data. For this reason, you have been requested in our initial answer to provide us with more information on yourself with a view to ensuring that you have a legitimate justification to be allowed to get access to the information requested.

My Reply of 05.06.2013 :

Indeed I am aware of this jurisprudence therefore I urge you to make anonymous the names if there is a risk for violation of privacy of the alleged perpetrators or identified perpetrators (see Allgeier case).
Please allow me to draw your attention to this jurisprudence:

“In accordance to p. 165 of Judgment of the Civil Service Tribunal of 2 May 2007 in Case F-23/05: “it has to be recognized that a culture of accountability has grown up within the Community institutions, responding in particular to the concern of the public to be informed and assured that malfunctions and frauds are identified and, as appropriate, duly eliminated and punished. The consequence of that requirement is that officials and other servants who hold posts of responsibility within an administration such as the Commission must take into account the possible existence of a justified need to communicate a degree of information to the public”.

I also invoke hereby the duty to the public of the EU legal advisers (either they are lawyers or judges or ex-judges) to protect EU citizens against any reprehensible facts and not to cover or justify such facts, either intentionally or by negligence. The EU citizens are the ones who pay salaries of a part of us, including by having this correspondence.

Your question:

“Based on this article, the Agency must also analyse and balance the different interests at stake, in particular whether there is any reason that legitimate interests of the data subjects might be prejudiced. Pursuant to Article 4(1) (b) of Regulation (EC) No 1049/2001, access to a document has to be refused if its disclosure would undermine the protection of privacy and the integrity of the individual, in particular with the protection of personal data”.

My reply of 05.06.2013:

Please proceed ahead with this analysis and balance the different interests at stake: interest of the EU public, interest of the potential perpetrators and interest of the perpetrators identified in Allgeier case. When this analysis is ready I request access to its final version.

Your question:

“In case you provide the above information, the Agency needs an extension of the time-period initially allowed, for further 15 calendar days, following the date of reception of your confirmatory application provided that, in the meanwhile, the pre-requisite justifications from your side have been supplied to the Agency”

My reply of 05.06.2013:

Please refer to my replies above. I agree with the extension and will wait further 15 days.

Your question:

“With regards to your request dated 29 April, point three related to recital 61 of judgment F-58/10, please be informed that:  The contract was signed on the 4.11.2007 with the Danish Institute for Human Rights for an amount of 499,586 Euros.
http://fra.europa.eu/sites/default/files...
 The validity of the contract was of one year with no possibility of renewal.
http://fra.europa.eu/en/call-for-tender/...
As it is mentioned in the link above (including the contract and the tender file) the exact title of the tender is “Comparative study on the situation concerning homophobia and discrimination on grounds of sexual orientation in the EU”. The study was not limited to Denmark but rather to the whole EU”.

My reply of 05.06.2013:

Please note that there are errors either in your present Reply or in the Allgeier Judgment F-58/10 or hopefully not, the Judges were misinformed, because in the Judgment F-58/10 is written:

“61 However, it is not disputed that the IMR, of which the investigator was Chairman on the date he was appointed to conduct the inquiry, had concluded with the FRA a contract worth nearly EUR 500 000 for the submission of information to it concerning discrimination based on sexual orientation, between 2007 and 2008, in Denmark. Furthermore, when the investigator conducted the inquiry, that contract was capable of being renewed repeatedly in the future, as confirmed by the FRA during the hearing.”

I cannot find in Curia Website any Rectification by Chamber 1 of the EU Court/CST. Therefore in the public interest I hereby request additional information and access to the full tender file (not only the link you kindly provided to me. The full tender Dossier includes also: Assessment of offers, Award Decision, Letters, Minutes, Contracts, Opinions of Legal Team, etc). Apparently the EU court was misled or misinformed as to the facts of the case. I believe that this is very serious and my duty is to make aware you and the EU public.

I renew my request to have access to full Tender file related to this Action brought on 26 July 2011 — Symfiliosi/FRA (Case T-397/11) (2011/C 282/70), which read as follows:

“Pleas in law and main arguments: In support of the action, the applicant relies on one main plea in law, alleging that the Agency failed to provide reasons for its decision. It further contests the substance of the evaluation of tendering bids, alleging that the latter had been arbitrary, unreasonable and unlawful.”

Please refer to my Reply of 17.05.2013 on this issue available here http://www.asktheeu.org/en/request/reque...

You can read it also below (copy-pasted)

“Dear EU Agency for Fundamental Rights (FRA),

Official Journal of the European Union provides relevant information to the EU public as to the FRA tender procedure I requested access (data collection and research services on fundamental rights issues). The communication is accessible from here:
http://ted.europa.eu/udl?uri=TED:NOTICE:...

As can be seen the related contracts concluded are of EUR 12 000 000 per each country.

Then, in the same transparent manner, the European Union portal EURLEX informs the EU public that one court case was brought against FRA in relation to this tender procedure of EUR 12 000 000 per each country.
This communication is accessible from here: http://eur-lex.europa.eu/LexUriServ/LexU...

As can be seen in the public text: “the applicant relies on one main plea in law, alleging that the Agency failed to provide reasons for its decision. It further contests the substance of the evaluation of tendering bids, alleging that the latter had been arbitrary, unreasonable and unlawful”.

Therefore one of the aspects is that apparently FRA did not provide to this bidder access to information and related documents and he remained with no option than to bring his case before the EU Court.

Then, the EU portal relevant to archive of EU Court`s judgments and orders informs the EU public that the respective bidder discontinued the case.

That public communication is accessible from here:
http://curia.europa.eu/juris/document/do...

I request access to the respective tender file because the contractual amount is finally paid from EU taxpayer’s money and the EU public has right to know the reasons FRA rejected initially access to information.

Apparently FRA provided this access only after the case was brought before the Court. Such a rejection is costly for EU taxpayers. As well the related delay.

I want to outline how a non-observance of some fundamental rights of one bidder (i.e. access to information and right to have his decision motivated) generated unnecessary costs to be paid by taxpayers.

I requested access to relevant info and docs because this had happened in the jurisdiction of FRA, designated by European Parliament and Council as watch dog in area of respecting fundamental rights in the EU and making them a reality of everybody or anybody.

Access to info and docs provided in due time and right to have a decision adversely affecting someone, represents very important fundamental rights.

As can be seen in communication above, the respective bidder also contested the substance of the evaluation of tendering bids, alleging that the latter had been arbitrary, unreasonable and unlawful. The EU public is entitled to know if that bidder made such allegations in an unfounded manner or in a legit manner.

If unfounded, then FRA should have recovered legal costs paid, because in the Order of the EU Court is written that the bidder “sought no order as to costs” and that “Each party shall bear its own costs.” So FRA paid legal costs, either because of its wrong rejection of access to information requested by that bidder either unjustifiably accepted not to recover from that bidder the legal costs incurred, if he brought the case before the Court in an unfounded manner and also made unfounded allegation against FRA.

Whilst I am not required to provide reasons as to my request, this is the frame I request access to the tender file in question. Please feel free to make anonymous the names of agents who acted in behalf of FRA as experts in evaluation of bids. Naturally, the request refers also to access relevant documents related to evaluation”.
End of my Reply to you dated 17.05.2013
Taking into consideration all facts and jurisprudence quoted by all of us, I renew my request to have aces to all documents as they are listed in my Original requests.

Yours faithfully,

Kurt Weiss

EU Agency for Fundamental Rights (FRA), Agencia de los Derechos Fundamentales de la Unión Europea

2 Adjuntos

[1]Adobe Systems

 

To the attention of:

 

Mr Kurt Weiss

E-mail: via asktheeu.org

 

 

 

 

 

Vienna,

Ref: 2013-outgoing-00975

 

Subject: Your requests for access FRA information and documents

 

Dear Mr Weiss,

 

We refer to your e-mail dated 05/06/2013 following our reply dated
04/06/2013 to your two e-mails dated 17/05/2013 and one e-mail dated
21/05/2013. Please note also our reply dated 13/05/2013 to your e-mail
dated 29/04/2013 and 09/05/2013 as well as our reply dated 16/05/2013 to
your e-mail dated 13/05/2013.

 

(1)  Your request for access to documents concerning the Case F-58/10
(Judgement of 18/09/2012).

 

Following consultation of the data subject and their refusal for making
public the documents concerned, the Agency concluded that the disclosure
of the personal data, would, by the very nature, undermine the protection
of the privacy rights and the integrity of the persons concerned. This
exception is absolute pursuant to Article 4.1 (b) of Regulation (EC) No
1049/2001.

 

In addition, we found that disclosure of internal deliberations for
further action concerning the Judgement F-58/10, even after an eventual
decision has been taken, is not justified by any overriding public
interest in the meaning of Article 4.3.2^nd paragraph of Regulation (EC)
No 1049/2001. As long as the formal requirements of publication of the
Judgement F-58/10 in the OJ have been met, your private interest in the
case F-58/10 cannot supersede the interests of the parties involved.

 

Consequently, in absence of serious grounds for disclosure, we confirm
that the access to internal deliberations in the FRA concerning the
Judgement F-58/10 is refused on the basis of the exception of protection
of personal data pursuant to Article 4.1 (b) of Regulation (EC) No
1049/2001.

 

(2)  Your request for access to  the “Tender File for contract procedure
“Data Collection in the European Union” and information on the Case
T-397/11 (removed from the register of the General Court)

 

The Agency has granted partial access to the tender file for “Tender File
for contract procedure “Data Collection in the European Union”, by
providing you with the relevant link to the “Register of documents”
published in the FRA website. Please be also ensured that as a natural
person your right of access to the outcome of this tender procedure is
safeguarded by means of the publication of the award notice in the
Official Journal, which is legally mandatory pursuant the Financial Rules
of the Agency .

 

As far as other requested documents are concerned (Case T-397/11), we may
not grant access to them, in particular the evaluation report, on the
basis of Article 4(2) 1^st indent of Regulation 1049/2001, having due
regard to the exception of protection of the commercial interests of the
tenderers. In the absence of any evidence of an overriding public interest
to warrant disclosure, the Agency may not waive this exception. 

Pursuant to Article 4(2) and 4(3) of Regulation 1049/2001, for such an
overriding public interest to exist, this interest, firstly has to be
public and, secondly, overriding i.e. must supersede the interests
protected by virtue of Article 4(2) and (3) of Regulation 1049/2001. After
thorough consideration of your request, it can be concluded that it is
based on your private interests to intervene in the Case T-397/11, which
was removed from the register of the General Court, following the
applicant’s wish to discontinue the proceedings. In sum, we do not see,
evidence of overriding public interest in your request for access to other
documents (including the evaluation report) that would allow us to waive
the exception.

 

Furthermore, the Agency has contacted the data subject that opposed to
disclose their personal data.

 

In light of the above, in absence of serious grounds for disclosure an
access to documents concerning case T-397/11 is refused on the basis of
the exception of protection of personal data pursuant to Article 4.1 (b)
of Regulation (EC) No 1049/2001.

 

(3)  Recital 61of Judgement F-58/10

 

The Agency has already provided access to the identified documents as per
our previous reply.

 

Means of redress

 

We would like to draw your attention to the means of redress against
decisions laid down under points (1), (2) and (3). You may either bring
procedures before the General Court or file a complaint with the European
Ombudsman under the conditions specified respectively in Art. 263 and 228
of the Treaty on the functioning of the European Union, and the Regulation
(EC) 1049/2001.

 

Yours sincerely,

 

 

From: Kurt Weiss [[2]mailto:[FOI #522 email]]

Sent: 05 June 2013 14:36

To: EU Agency for Fundamental Rights (FRA)

Subject: access to information request - EU Fundamental Rights Agency
duties and obligations to be transparent towards EU public

 

     Dear Director of European Union Agency for Fundamental Rights,

 

     Thank you for your reply provided under this link

    
[3]http://www.asktheeu.org/en/request/reque...

 

     As to your paragraphs below, please find my replies:

 

     Your question:

 

     “Please kindly note that there are still outstanding issues to

     clarify with you regarding the legitimacy of your request for

     access to documents over the Case F-58/10 and the Case T-397/11

     (referred to in your e-mail of 17/05/2013)”.

 

     My reply of 05.06.2013:

 

     I am an EU citizen, domiciled and living in a country of the EU.

     The Council Regulation 1049/2001 does not require that I have to

     specify the scope of my request. If something in my research is

     improper or unlawfully requested, please feel free to make me

     aware. However, I re-read the texts and they are within the

     provisions of EU legislation. As to your request to ask me to

     provide you with my ID documents, please refer to your Legal Team.

 

     Your question:

 

     “As you may know, the Agency shall take into consideration the

     limits imposed by the Union legislation in a matter where the

     personal data have to be protected. As established by the European

     Court of Justice in the Bavarian Lager judgement (Case C-28/08),

     referring to the provisions of Article 8 (b) of Regulation (EC) No

     45/2001 on the protection of individuals with regard to the

     personal data, it does not suffice for the recipient to simply

     invoke the general interests of transparency when requesting access

     to a document which contains personal data. For this reason, you

     have been requested in our initial answer to provide us with more

     information on yourself with a view to ensuring that you have a

     legitimate justification to be allowed to get access to the

     information requested.

 

     My Reply of 05.06.2013 :

 

     Indeed I am aware of this jurisprudence therefore I urge you to

     make anonymous the names if there is a risk for violation of

     privacy of the alleged perpetrators or identified perpetrators (see

     Allgeier case).

     Please allow me to draw your attention to this jurisprudence:

 

     “In accordance to p. 165 of Judgment of the Civil Service Tribunal

     of 2 May 2007 in Case F-23/05: “it has to be recognized that a

     culture of accountability has grown up within the Community

     institutions, responding in particular to the concern of the public

     to be informed and assured that malfunctions and frauds are

     identified and, as appropriate, duly eliminated and punished. The

     consequence of that requirement is that officials and other

     servants who hold posts of responsibility within an administration

     such as the Commission must take into account the possible

     existence of a justified need to communicate a degree of

     information to the public”.

 

     I also invoke hereby the duty to the public of the EU legal

     advisers (either they are lawyers or judges or ex-judges) to

     protect EU citizens against any reprehensible facts and not to

     cover or justify such facts, either intentionally or by negligence.

     The EU citizens are the ones who pay salaries of a part of us,

     including by having this correspondence.

 

     Your question:

 

     “Based on this article, the Agency must also analyse and balance

     the different interests at stake, in particular whether there is

     any reason that legitimate interests of the data subjects might be

     prejudiced. Pursuant to Article 4(1) (b) of Regulation (EC) No

     1049/2001, access to a document has to be refused if its disclosure

     would undermine the protection of privacy and the integrity of the

     individual, in particular with the protection of personal data”.

 

     My reply of 05.06.2013:

 

     Please proceed ahead with this analysis and balance the different

     interests at stake: interest of the EU public, interest of the

     potential perpetrators and interest of the perpetrators identified

     in Allgeier case. When this analysis is ready I request access to

     its final version.

 

     Your question:

 

     “In case you provide the above information, the Agency needs an

     extension of the time-period initially allowed, for further 15

     calendar days, following the date of reception of your confirmatory

     application provided that, in the meanwhile, the pre-requisite

     justifications from your side have been supplied to the Agency”

 

     My reply of 05.06.2013:

 

     Please refer to my replies above. I agree with the extension and

     will wait further 15 days.

 

     Your question:

 

     “With regards to your request dated 29 April, point three related

     to recital 61 of judgment F-58/10, please be informed that: - The

     contract was signed on the 4.11.2007 with the Danish Institute for

     Human Rights for an amount of 499,586 Euros.

     [4]http://fra.europa.eu/sites/default/files...

     - The validity of the contract was of one year with no possibility

     of renewal.

     [5]http://fra.europa.eu/en/call-for-tender/...

     As it is mentioned in the link above (including the contract and

     the tender file) the exact title of the tender is “Comparative

     study on the situation concerning homophobia and discrimination on

     grounds of sexual orientation in the EU”. The study was not limited

     to Denmark but rather to the whole EU”.

 

     My reply of 05.06.2013:

 

     Please note that there are errors either in your present Reply or

     in the Allgeier Judgment F-58/10 or hopefully not, the Judges were

     misinformed, because in the Judgment F-58/10 is written:

 

     “61 However, it is not disputed that the IMR, of which the

     investigator was Chairman on the date he was appointed to conduct

     the inquiry, had concluded with the FRA a contract worth nearly EUR

     500 000 for the submission of information to it concerning

     discrimination based on sexual orientation, between 2007 and 2008,

     in Denmark. Furthermore, when the investigator conducted the

     inquiry, that contract was capable of being renewed repeatedly in

     the future, as confirmed by the FRA during the hearing.”

 

     I cannot find in Curia Website any Rectification by Chamber 1 of

     the EU Court/CST. Therefore in the public interest I hereby request

     additional information and access to the full tender file (not only

     the link you kindly provided to me. The full tender Dossier

     includes also: Assessment of offers, Award Decision, Letters,

     Minutes, Contracts, Opinions of Legal Team, etc). Apparently the EU

     court was misled or misinformed as to the facts of the case. I

     believe that this is very serious and my duty is to make aware you

     and the EU public.

 

     I renew my request to have access to full Tender file related to

     this Action brought on 26 July 2011 — Symfiliosi/FRA (Case

     T-397/11) (2011/C 282/70), which read as follows:

 

     “Pleas in law and main arguments: In support of the action, the

     applicant relies on one main plea in law, alleging that the Agency

     failed to provide reasons for its decision. It further contests the

     substance of the evaluation of tendering bids, alleging that the

     latter had been arbitrary, unreasonable and unlawful.”

 

     Please refer to my Reply of 17.05.2013 on this issue available here

    
[6]http://www.asktheeu.org/en/request/reque...

 

     You can read it also below (copy-pasted)

 

     “Dear EU Agency for Fundamental Rights (FRA),

 

     Official Journal of the European Union provides relevant

     information to the EU public as to the FRA tender procedure I

     requested access (data collection and research services on

     fundamental rights issues). The communication is accessible from

     here:

     [7]http://ted.europa.eu/udl?uri=TED:NOTICE:...

 

     As can be seen the related contracts concluded are of EUR 12 000

     000 per each country.

 

     Then, in the same transparent manner, the European Union portal

     EURLEX informs the EU public that one court case was brought

     against FRA in relation to this tender procedure of EUR 12 000 000

     per each country.

     This communication is accessible from here:

     [8]http://eur-lex.europa.eu/LexUriServ/LexU...

 

     As can be seen in the public text: “the applicant relies on one

     main plea in law, alleging that the Agency failed to provide

     reasons for its decision. It further contests the substance of the

     evaluation of tendering bids, alleging that the latter had been

     arbitrary, unreasonable and unlawful”.

 

     Therefore one of the aspects is that apparently FRA did not provide

     to this bidder access to information and related documents and he

     remained with no option than to bring his case before the EU Court.

 

     Then, the EU portal relevant to archive of EU Court`s judgments and

     orders informs the EU public that the respective bidder

     discontinued the case.

 

     That public communication is accessible from here:

     [9]http://curia.europa.eu/juris/document/do...

 

     I request access to the respective tender file because the

     contractual amount is finally paid from EU taxpayer’s money and the

     EU public has right to know the reasons FRA rejected initially

     access to information.

 

     Apparently FRA provided this access only after the case was brought

     before the Court. Such a rejection is costly for EU taxpayers. As

     well the related delay.

 

     I want to outline how a non-observance of some fundamental rights

     of one bidder (i.e. access to information and right to have his

     decision motivated) generated unnecessary costs to be paid by

     taxpayers.

 

     I requested access to relevant info and docs because this had

     happened in the jurisdiction of FRA, designated by European

     Parliament and Council as watch dog in area of respecting

     fundamental rights in the EU and making them a reality of everybody

     or anybody.

 

     Access to info and docs provided in due time and right to have a

     decision adversely affecting someone, represents very important

     fundamental rights.

 

     As can be seen in communication above, the respective bidder also

     contested the substance of the evaluation of tendering bids,

     alleging that the latter had been arbitrary, unreasonable and

     unlawful. The EU public is entitled to know if that bidder made

     such allegations in an unfounded manner or in a legit manner.

 

     If unfounded, then FRA should have recovered legal costs paid,

     because in the Order of the EU Court is written that the bidder

     “sought no order as to costs” and that “Each party shall bear its

     own costs.” So FRA paid legal costs, either because of its wrong

     rejection of access to information requested by that bidder either

     unjustifiably accepted not to recover from that bidder the legal

     costs incurred, if he brought the case before the Court in an

     unfounded manner and also made unfounded allegation against FRA.

 

     Whilst I am not required to provide reasons as to my request, this

     is the frame I request access to the tender file in question.

     Please feel free to make anonymous the names of agents who acted in

     behalf of FRA as experts in evaluation of bids. Naturally, the

     request refers also to access relevant documents related to

     evaluation”.

     End of my Reply to you dated 17.05.2013

     Taking into consideration all facts and jurisprudence quoted by all

     of us, I renew my request to have aces to all documents as they are

     listed in my Original requests.

 

     Yours faithfully,

 

     Kurt Weiss

 

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

 

     This is a request for access to information under Article 15 of the

     TFEU and, where applicable, Regulation 1049/2001 which has been

     sent via the AsktheEU.org website.

 

     Please kindly use this email address for all replies to this

     request: [10][FOI #522 email]

 

     If [11][FRA request email] is the wrong address for information

     requests to European Union Agency for Fundamental Rights, please

     tell the AsktheEU.org team on email [12][email address]

 

     This message and all replies from European Union Agency for

     Fundamental Rights will be published on the AsktheEU.org website.

     For more information see our dedicated page for EU public officials

     at [13]http://www.asktheeu.org/en/help/officers

 

 

 

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

 

 

 

 

European Union Agency for Fundamental Rights
Schwarzenbergplatz 11
1040 Vienna, Austria
Tel: +43 1 58030-0

Email: [email address]

Visit us on: [14]http://fra.europa.eu | [15]Facebook | [16]Twitter |
[17]YouTube | [18]LinkedIn

Helping to make fundamental rights a reality for everyone in the European
Union

 

The EU as a community of values: safeguarding fundamental rights in times
of crisis - [19]read more in the FRA 2012 Annual Report Focus.

References

Visible links
2. mailto:[FOI #522 email]
3. http://www.asktheeu.org/en/request/reque...
4. http://fra.europa.eu/sites/default/files
5. http://fra.europa.eu/en/call-for-tender/
6. http://www.asktheeu.org/en/request/reque...
7. http://ted.europa.eu/udl?uri=TED:NOTICE
8. http://eur-lex.europa.eu/LexUriServ/LexU
9. http://curia.europa.eu/juris/document/do
10. mailto:[FOI #522 email]
11. mailto:[FRA request email]
12. mailto:[AsktheEU.org contact email]
13. http://www.asktheeu.org/en/help/officers
14. http://www.fra.europa.eu/
15. http://www.facebook.com/fundamentalrights
16. http://twitter.com/#!/EURightsAgency
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18. http://www.linkedin.com/company/eu-funda...
19. http://fra.europa.eu/en/press-release/20...