FP5-FP6-FP7 external financial audits reports submitted to the General Court to support the Commission's pleas

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Dear Legal Service (SJ),

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:

The application concerns a few pages of documents drawn up by the Legal Services and lodged to the Court of First Instance and the General Court (hereafter ‘the Court’). The underlying substance of the cases before the Court has been directly related to the external financial audits by the Research DGs.

Some INDICATIVE cases are:

T-116/11 EMA v Commission
T 59/11 Isotis v Commission
T-312/10 ELE.SI.A SpA v European Commission
T-286/10 Fondation de l’Institut de recherche IDIAP v European Commission.
T-252/10 Cross Czech v Commission
T-170/08 Commission v I.D. FOS Research
T-444/07 Centre de promotion de l’emploi par la micro-entreprise (CPEM) v Commission
T-179/06 Commission v Burie Onderzoek in Advies
T-74/05 International Institute for the Urban Environment v Commission

To support its arguments the Legal Services typically lodge with the Court several documents as annexes. The practice of the Legal Services seems to be that there is one (or more if necessary) page listing every single annex of the ‘main’ legal document. For instance, in a legal document setting out the Legal Services’ observations on an application for interim measures there is usually a list of the annexes thereto.

For instance, it is reasonable to expect that in the case T-170/08 the Legal Services submitted to the Court the audit report, in which case that report was listed in the list of annexes.

The application concerns the release of the pages with the list of the annexes of the ‘main’ legal documents, where the list includes an audit report drawn up by either the Research DGs or their external contractors – audit firms. The subject matter of the case before the Court may not necessarily concern a contractual dispute, but it may well be the extra-contractual liability of the Union.

Having regard to the above explanations, I would appreciate if the Legal Services would release the parts of the documents lodged with the Court in which in the list of annexes there is an occurrence of a final audit report of a Research DG external financial audit.

It appears that even for pending cases, the release of the requested pages is not subject to article 4(2), second indent, of Regulation 1049/2001. The reason is that the above line of arguments shows that the public would expect that the audit reports are most likely annexes to the legal documents lodged by the Legal Services. If necessary for pending cases, the Legal Services can expunge the lines-paragraphs listing the annexes thereto, but disclose the few lines-paragraph defining that an audit report is an annex to the ‘main’ legal document.

Yours faithfully,

Mr. Akis NASTAS

Servicio Jurídico

Dear Mr. Nastas,

I refer to your e-mail below requesting access to documents under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents. We hereby acknowledge receipt of your application which has been registered on 18 November 2013 under reference GestDem 2013/5717.

In accordance with Regulation 1049/2001, your application will be handled within 15 working days. The time limit will expire on 9 December 2013. In case this time limit needs to be extended, you will be informed in due course.

Yours sincerely,

Isabel Iturritza
Legal Service

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Servicio Jurídico

1 Adjuntos

Dear Mr Nastas,

 

We refer to your request dated 15 November 2013 and registered on 18
November 2013 under the above mentioned reference number.

 

Your application is currently being handled. However, in view of the
number and nature of the applications for access to documents the Legal
Service is dealing with currently, we will not be in a position to
complete the processing of your requests within the time limit of 15
working days, which expires today.

 

Therefore, we have to extend the time limit with 15 working days in
accordance with Article 7(3) of Regulation (EC) No 1049/2001 regarding
public access to documents. The new time limit expires on 9 January 2014,
but we will do our utmost to send you replies before that date.

 

We apologise for this delay and for any inconvenience this may cause.

 

Yours sincerely,

 

 

Diana TILOUCHE
 
European Commission
Legal Service

BERL 1/111
B-1049 Brussels/Belgium
+32 2-299 57 49
[1][email address]

 

References

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Servicio Jurídico

5 Adjuntos

Dear Mr Nastas,

 

Please find attached the reply to your request for access to documents
together with its enclosures.

 

Yours sincerely,

 

 

 

Diana TILOUCHE
 
European Commission
Legal Service

BERL 1/111
B-1049 Brussels/Belgium
+32 2-299 57 49
[1][email address]

 

References

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1. mailto:[email address]

Dear Legal Service (SJ),

Thank you very much for the initial response to GestDem 2013/ 5717 dated 9 January 2014.

In accordance to article 7(2) of Regulation 1049/2001 a confirmatory application is hereby submitted. It concerns the refusal to grant access to one or two pages of the document lodged to the General Court in the cases T-59/11 and T-l70/08, i.e. the page listing the annexes of the written pleadings.

The subsequent paragraphs analyse the reliance of the Legal Services to refuse access on article 4(2) second indent of Regulation 1049/2001 and the Judgement of the Court of Justice in the joined Cases C-514/07P, C-528/07P and C-532/07P.

I. INCORRECT APPLICATION OF ARTICLE 4(2) SECOND INDENT

The case-law of the EU Courts is that for certain class of documents found in a few types of administrative procedures there is a general presumption that they are protected by article 4(2) third indent of Regulation 1049/2001. Such procedures are primarily anti-trust investigations, state aid and mergers. In such type of procedures, few legal entities have a special right of accessing those file.

As regards judicial proceedings and written pleadings, a similar general presumption exists until the Court has delivered the Judgment according to the Judgment of the joined Cases C-514/07P, C-528/07P and C-532/07P.

The EU Courts have consistently held that such a presumption is rebuttable. Applicants are entitled to advance arguments that, for a particular document, the exceptions of article 4 second and third indent do not apply.

The instant application does not concern a single line of the Commission’s written pleadings in the pending Cases T-59/11 and T-l70/08. It merely concerns one or two of an annex to the written pleadings, which simply lists the documents annexed to the pleadings.

Since the Legal Services withheld at the very most four pages, in my view they had an obligation to examine the contents of those four pages, and assess to what extent the interest protected by article 4(2) second indent would be reasonably undermined by the disclosure of the four pages. The response is silent about the results of such an assessment, from which it is inferred that the Legal Services did not examine the content at all.

It must thus be concluded that the Legal Services infringed article 4(2) second indent by not having examined the content of the documents.

II. INCORRECT APPLICATION OF ARTICLE 4(6)

The initial response discloses, essentially, that the page(s) listing the annexes in the Commission’s written pleadings in T-59/11 and T-l70/08 has one line about one or more audit reports (e.g. draft and final versions).

The disclosed page 56 of document Ares(2010) 772944 shows that those lists do not contain additional information that is protected by an exception.

It follows that, in so far the lines listing the audit reports are concerned, the Legal Services ought to have partially disclosed the four pages with the lists. Consequently, the Legal Services infringed article 4(6) of Regulation 1049/2001.

III. INCORRECT RELIANCE TO CASE C-514/07P, C-528/07P and C-532/07P

The Judgement concerns written pleadings only. Therefore, the assertion “…the list of annexes together with the annexes themselves are integral part of the documents … the pages you request follow the same rule concerning the access to the main document” has arbitrarily and extensively extended the reasoning of the Court from written pleadings to every single document lodged to the Court.

Such a blanket extension is manifestly not automatic. For instance, an annexed document might be a public document, such as a publication of the legal representatives of a company. It cannot be claimed that such a document is protected by the case-law. Furthermore, a document that would be released - partially or wholly - under a 'normal' application would not suddenly come under the exception of article 4(2) second indent simply on account that it was annexed to written pleadings.

IV. INCONSISTENCY WITH PREVIOUS APPLICATIONS

For other applications under Regulation 1049/2001 requesting the Commission’s written pleadings before the EU Courts, the applicant understands that the Legal Services have routinely not released the page with the list of annexes. Therefore, the Legal Services cannot in this instance claim that the documents at issue are integral parts of the written pleadings, thereby being protected by the case-law.

V. DOCUMENTS ARE ESSENTIALLY A ‘STATEMENT OF CONTENTS’

The documents at issue are essentially one particular form of a ‘statement of contents’ of the file held at the Legal Services within the meaning of the Judgement of the General Court in the Case T-437/08, CDC Hydrogen Peroxide v European Commission. Consequently, it cannot be maintained that they are protected by the case-law.

VI. INFORMATION IN THE PUBLIC DOMAIN

The applicants in both cases are known. From the Commission Cordis database and other public databases, it only takes a few minutes to compile a list of the R&D projects in which they had participated. It is safe to assume that the documents at issue list contractual correspondence between the applicants and the Commission services.

Most of the content of the disclosed page 56 of the document Ares(2010) 772944 is simply list of letters exchanged between the litigants, together with their reference numbers and dates. It is impossible to see how such kind of content is protected under the case-law.

VII. CONCLUSIONS FOR THE CONFIRMATORY APPLICATION

It seems highly likely that the Commission services are obliged to release the two documents, redacting only personal data (if any) and information protected by article 4(2) first indent (commercial interests). The exception of article 4(2) second indent is not applicable.

Yours faithfully,

Mr. Akis NASTAS

Servicio Jurídico

Dear Sir,

Thank you for your email dated 17/01/2014.

We hereby acknowledge receipt of your confirmatory application for access to documents, which was registered on 23/01/014 under reference number GestDem 2013/5717 – Ares(2014) 149195.

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 13/02/2014. 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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Servicio Jurídico

2 Adjuntos

 
Dear Mr Nastas,

Kindly find herewith a letter concerning your confirmatory application for
access to documents (gestdem 2013/5717).
Yours sincerely,
Carlos Remis
SG.B.4.
Transparence.
Berl. 05/329.