FP6 & FP7 external financial audits, letteres annuncing audits released pursuant to Regulation No 1049/2001

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Dear Communications Networks, Content and Technology (CNECT),

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. LETTERS ANNOUNCING THE CONDUCT OF AN EXTERNAL FINANCIAL AUDIT RELEASED PURSUANT TO REGULATION NO 1049/2001

It is probable that in accordance with Regulation No 1049/2001 DG INFSO or DG CNET has already released letters announcing to a FP6 contractor or FP7 beneficiary the conduct of an audit pursuant to FP6.II.29 and FP7.II.22. By definition such letters were drawn up either by the former DG INFSO S.5 external audits Unit or the current DG CNET R.4 Compliance Unit.

#1: Please provide me with a copy of every single audit announcement letter drawn up by the aforesaid S.5 and R.4 Units released by the Commission services pursuant to Regulation No 1049/2001, including all annexes thereto and the Privacy Statement.

In case such documents were indeed released by the Commission services, it is expected that DG CNET will release them in an identical form and within the 15 days limit of handling initial applications.

II. SUSPENSION OF FP7 GRANT AGREEMENTS PURSUANT TO ARTICLE FP7.II.8.2

That provision reads:
"The coordinator can propose to suspend the whole or part of the project if force majeure or exceptional circumstances render its execution excessively difficult or uneconomic. The coordinator must inform the Commission without delay of such circumstances, including full justification and information related to the event, as well as an estimation of the date when the work on the project will begin again."

Copies of the following documents are kindly requested:

#2. The document(s) drawn up by the Commission services setting out some kind of 'guidelines' according to which the Commission services assess and evaluate to what extent a coordinator's request for suspension concerns indeed 'exceptional circumstances render its execution excessively difficult or uneconomic', in order to justify the Commission's granting of the suspension pursuant to article FP7.II.8.2, and subsequently adopt the corresponding contractual decision.

#3. The DG INFSO or DG CNET drawn up letters from 1/1/2010 onwards granting the suspension of a FP7 grant agreement managed by the former DG INFSO Unit 'ICT for Health' and its successor in DG CNET pursuant to article FP7.II.8.2.

III. SUSPENSION OF FP7 GRANT AGREEMENTS PURSUANT TO ARTICLE FP7.II.8.3

That provision reads:
""The Commission may suspend the whole or part of the project where it considers that the consortium is not fulfilling its obligations according to this grant agreement. The coordinator shall be informed without delay of the justification for such an event and the conditions necessary to reinstate the work again. The coordinator shall inform the other beneficiaries. This suspension takes effect 10 days after the receipt of the notification by the coordinator."

Copies of the following documents are kindly requested:

#4. The document(s) drawn up by the Commission services setting out some kind of 'guidelines' according to which each Research family DG assess the particularities of each different case and subsequently adopts a contractual decision to suspend the FP7 grant agreement (henceforth 'FP7 GA') pursuant to article FP7.II.8.3.

#5. The DG INFSO or DG CNET drawn up letters from 1/1/2010 onwards imposing the suspension of a FP7 GA managed by the two former DG INFSO Units 'ICT for Health' & 'ICT for Transport' and their successors in DG CNET pursuant to article FP7.II.8.3, including all annexes thereto.

IV. EXCEPTIONS OF ARTICLE 4 OF REGULATION NO 1049/2001

This section discusses to what extent DG CNET may rely on these exceptions to refuse access.

IV.1 PERSONAL DATA

In my view, DG CNET is to redact what is strictly necessary to ensure compliance with article 4(1)(b) of Regulation 1049/2001. This application does not request the transfer of personal data to the applicant, other than the names of the Commission officials who are responsible for the contractual measures.

IV.2 REQUESTS #3 & #5

In my view, the suspension of an FP7 GA pursuant to article FP7.II.8.2 is not in itself subject to the protection of article 4(2) first indent 'commercial interests'. The project duration is published, the end of a project is also published, so if there are suspension or extensions this is public information. Provided that the suspension request pursuant to article FP7.II.8.2 was lawful, and was not a fig-leaf of excuses by the coordinator, there is no commercial interest involved worthy the protection of article 4(2) first indent.

In case a suspension pursuant to FP7.II.8.2 was granted by DG INFSO or DG CNET on unlawful or unjustified grounds, then DG CNET has a big motive to refuse access in order to avoid the embarrassment.

In my view and in such cases, DG CNET has to consider the consequences of the letter granting the suspension being in a lawful possession at the hands of dozens of researchers of the consortium, who in turn may have circulated to other researchers. If the suspension letter turns up in the public Internet, or in Courts in civil disputes, then the public will be able to understand why DG CNET refused to release it in this applications. Subsequent applications pursuant to Regulation No 1049/2001 may point to a genuine copy of a suspension letter in the public Internet and then request for a copy held by DG CNET. DG CNET will then find itself between a rock and a hard place.

Turning to a suspension pursuant to FP7.II.8.3 that the Commission services may unilaterally impose, such suspension is warranted when the Commission 'considers that the consortium is not fulfilling its obligations according to this grant agreement'. Non-fulfillment of contractual obligations in a project funded at a minimum of 50% by public funds is not a matter of the Commission services and the contractor alone. It is a matter of public interest also.

The FP7 beneficiaries are supposed to be aware that the public is entitled, in principle, to obtain copies of documents held by the Commission. The confidentiality contractual clauses of the FP7 GA, which is private law contract, cannot take precedence over the rights of the public enshrined in Regulation No 1049/2001. If a private law contract were to override Union law, then it will all but trivial for the Institutions to escape their transparency obligations by engineering the 'proper' private law contract, whose terms may draw up as they see fit.

It follows therefore that article 4(2) first indent cannot be relied on to protect from a public disclosure the Commission's suspension of a FP7 GA that was caused by
'the consortium's non-fulfillment of its obligations according to this grant agreement'. In principle, non-fulfillment of a contract concluded in the public interest and financed by at least 50% directly by the Union (non an Institution on its own account) and a resulting suspension is a matter that justifies full disclosure.

In cases of a non-fulfillment of contractual obligations by a FP7 consortium , and provided that this is indeed the case and that such a non-fulfillment was established lawfully, in my view the non-fulfillment is not worth protecting by article 4(2) first indent. In fact, its is the non-fulfillment itself that gives rise to the suspension that it is the subject of the suspension letters of present application. Therefore, protecting the disclosure to the public of non-fulfillment of contractual obligations do not deserve the protection article 4(2) first indent affords.

On the other hand, in case where the suspension of a FP7 GA by DG INFSO - DG CNET was based to a substantial extent to extra-contractual considerations (e.g. CV of persons allocated to the FP7 GA were not deemed appropriate by the experts assisting in a project review DG INFSO, DG INFSO questioning the large number of IT companies in a FP7 GA eight months into the execution of the project, with which IT companies DG INFSO itself alone decided to conclude a contract) is not worth protecting, in the sense that the poor FP7 consortium fell victim of an arbitrary and discriminatory treatment of DG INFSO - DG CNET. Any attempt of DG CENT to avoid the disclosure of its heavy-handed and arbitrary FP7 GA suspensions relying on the exceptions of Regulation No 1049/2001 may amount, arguably, to an 'abuse-misuse' of it, just to serve its own 'private interest'.

IV.3 REQUESTS #2 & #4

In my view no exception of article 4 of Regulation No 1049/2001 is applicable.

The documents concern abstract 'guidelines' on contractual measures. Article 4(3) first sub-paragraph is not applicable once the 'guidelines' were drawn up. It is difficult to see how article 4(3) second sub-paragraph is applicable, since release of the 'guidelines' cannot seriously undermine the decision making process of the Research family DGs.

V. OVERRIDING PUBLIC INTEREST

V.1 REQUEST #2

The suspension of an FP7 GA is a very significant event in a GA.

Article FP7.II.8.2 does not expressly require the consent of the consortium. Conceivably, the coordinator may abuse its 'commanding' position and seek the suspension of the whole FP7 GA for its own private interests at the expense of the consortium. Such a risk is very acute in case following an external financial audit the Commission services have initially rejected all claimed costs of the FP7 coordinator and in all audited FP6 and FP7 projects. To get some leeway for manoeuvrings, an FP7 coordinator may unilaterally request the suspension without even seeking the consent of the consortium.

Another scenario is when a few partners 'gang up' with the coordinator and request a suspension pursuant to article FP7.II.8.2 while the rest of the consortium disagrees.

The public is entitled to see how exactly the Commission services were prepared to deal with such scenarios.

In order to be a fair and objective contractual partner who manages the Union funds, the Commission services must handle such issues delicately, bearing also in mind the interests of the taxpayer who foots at least 50% of the bill.

Such reasoning essentially argues that the Commission services ought to have drawn up some kind of 'guidelines', even as brief as a few paragraphs, for a programme worth 100 billion.

The overriding public interest is to see what exactly are the guidelines and whether the Commission services have been diligent enough to foresee 'trouble' and not wait to improvise when 'trouble' pops up.

V.2 REQUEST #4

Article FP6.II.13 is very bizarre in that (i) it 'grants' contractual rights about personal data to legal persons that they cannot do not have in the first place, (ii) it 'grants' legal persons the contractual right to have recourse to the EDPS about non-existing 'personal' data and (iii) even if legal persons 'had' personal data they 'could' lodge complaints with the EDPS as a matter of Union law, which means that the 'contractual right' to do so is redundant.

According to FP7.II.28.1.c the Commission is entitled to terminate the participation of a beneficiary 'where the beneficiary has deliberately or through negligence committed an irregularity in the performance of any grant agreement with the Commission'.

Article FP7.II.1.10 defines irregularity as:
"irregularity" means any infringement of a provision of Community law or any breach of obligation resulting from an act or omission by a beneficiary which has, or would have, the effect of prejudicing the general budget of the European Communities or budgets managed by them through unjustified expenditure

It is not public information that DG INFSO DPO-3334.1 has two false declarations. This necessarily implies that that in external financial audits DG INFSO & DG CENT have had their own very peculiar view of legality.

It does not take a great leap of imagination to conclude that DG INFSO or DG CNET may have adopted arbitrary and capricious contractual decisions in several FP7 GAs. GestDem 2013-3520 concerning the FP7 audit 11-BA135-006 and the 'double-booking' DG INFSO - DG CNET checks shows a rather 'relaxed' attitude towards article 339 TFEU by DG INFSO - DG CNET.

Armed with the above contractual 'tools' DG INFSO and DG CNET have had a free hand to suspend a FP7 GA as a prelude to a termination a few months later on.

The overriding public interest is to see what exactly are the guidelines and whether the Commission services have been diligent enough to foresee 'trouble' and not wait to improvise when 'trouble' pops up. Furthermore, the DG INFSO - DG CNET conduct must be scrutinised by the public to restore the public's confidence in the lawfulness of DG CNET future conduct in FP7 and Horizon 2020.

Fully releasing the 'guidelines' is an essential step of the scrutiny.

V.3 REQUEST #3 and #5

The applicant is nearly certain that (i) DG INFSO - DG CNET has agreed to unjustified requests for a FP7 GA suspension pursuant to FP7.II.8.2 which have harmed the consortium and other third parties and (ii) has suspended at least a FP7 GA on account inter alia of a large number of IT companies in the consortium, even though DG INFSO on its own volition concluded the GA with them in the first place.

The DG INFSO - DG CNET conduct in concrete FP7 GA suspension cases must be scrutinised for compliance with the 'guidelines' (if they exist) and the lawfulness of its contractual decisions.

Yours faithfully,

Zois Zervos

Redes de Comunicación, Contenido y Tecnologías

Dear Sir,

Thank you for your e-mail dated 27/07/2013.

We hereby acknowledge receipt of your application for access to documents, which was registered on 30/07/2013 under references:

* GestDem 2013/3956 for documents concerning DG CONNECT (points #1 - #3 - #5 of your request) and

* GestDem 2013/3957 for documents concerning DG RTD (points #2 - #4 of your request).

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 21/08/2013. In case this time limit needs to be extended, you will be informed in due course.

Yours faithfully,

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

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Redes de Comunicación, Contenido y Tecnologías

1 Adjuntos

Dear Mr Zervos,

 

We would like to assure you that your application is currently being
processed. We have noted that your application requires an extensive
search of our files and concerns potentially a very large number of
documents which will need to be assessed individually in order to check
whether they are really relevant to the scope of your request.  Such a
detailed analysis cannot be carried out within the normal time limits set
out in Article 7 of Regulation (EC) N°1049/2001.

 

However, the Regulation also provides for a possibility to confer with
applicants in order to find a fair solution when an application concerns a
very large number of documents. Article 6(3) states that "in the event of
an application relating to a very long document or to very large number of
documents, the institution concerned may confer with the applicant
informally, with a view to finding a fair solution".

 

Based on this provision, and in order to handle your application for
access to documents with the utmost care, we would propose to organise a
meeting with you in order to discuss the best way to respond to your
request.  This meeting could be organised in our premises, or via
video-conference, according to your preference.

 

In the meantime, as we are committed to the highest level of transparency,
and we will send you as soon as possible the documents which we will
identify as falling within the scope of your application, if any.
 Needless to say, we will try to finalise the handling of your application
for access to documents as fast as possible.

 

If you have any questions concerning this proposal, you can contact us by
email to: [1][email address]

 

 

Thank you for your comprehension.

 

Yours faithfully,

 

Silvia BOJINOVA

Head of Unit

 

[2]Description: Description: Description:
cid:image001.png@01CDF26F.EF7D9990

European Commission

DG Research & Innovation

R5

 

ORBN 09/151

B-1049 Brussels/Belgium

+32 229-85891

[3][email address]

 

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

 

 

References

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Dear Communications Networks, Content and Technology (CNECT),

This message concerns application GestDem 2013/3957 for which DG RTD will provide the initial reply. It is kindly requested that DG CNECT forward it to the R.5 Unit of DG RTD.

The message sets out the applicant’s reply and counter-proposal to the DG RTD proposal to organise a meeting or a video-conference.

1. LARGE NUMBER OF DOCUMENTS

According to DG RTD the application potentially concerns a very large number of documents:

“ […] application requires an extensive search of our files and concerns potentially a very large n document entitled “GUIDELINES: Claiming Liquidated Damages from beneficiaries” umber of documents which will need to be assessed individually in order to check whether they are really relevant to the scope of your request.”

It is crucial to appreciate that DG RTD has NOT stated:

- That the application indeed concerns a large number of documents; it is only potentially that a large number of documents may need examination for their relevancy to the application.

- That the application is imprecise within the meaning of article 6(2) of Regulation No 1049/2001.

The applicant is very puzzled by what seems to be the inability of DG RTD to narrow down by itself, without conferring with the applicant, the number of documents concerning requests #2 and #4. To this end, the DG RTD success of identifying documents is contrasted with that of the Legal Services for similar “Guidelines”, which is briefly described below.

It appears that when it came to the internal “Guidelines” for the provision of liquidated damages pursuant to article FP6.II.30 and the application GestDem 2013-3524 (http://www.asktheeu.org/en/request/fp6_f...), the Legal Services (not DG RTD) was able to establish the release of the DG RTD document entitled “GUIDELINES: Claiming Liquidated Damages from beneficiaries” pursuant to another application in accordance to Regulation No 1049/2001. If the Legal Services are capable of identifying and fully releasing such Guidelines and in such particular context – the Guidelines also apply to the provision FP7.II.24.1 - it is exceedingly difficult to understand how DG RTD has seemingly failed to precisely identified documents concerning requests #2 and #4, but instead has concluded that requests #2 and #4 potentially concern a very large number of documents.

Article 6(3) of Regulation No 1049/2001 is only applicable when “an application relating to a very long document or to very large number of documents”, that is to say that the Institution has objectively determined that a large number of documents fall with the scope of the application, and in principle it is required to individually examine each document. This is not the case in the present application, as the application potentially only concerns a large number of documents. In case the EU legislature intended a potentially large number of documents to trigger a conferring with the applicant, it would have worded article 6(3) accordingly.

Relevant EU Court case law is briefly analysed, in particular the precedents of the cases T-167/10 European Dynamics v Commission and T-301/10 Veld v Commission where hundreds and more than 50 were at issue respectively. It appears that the Commission services did not organise face to face meetings or video-conferences, even though in those two applications it is very probable that thousands and several hundreds of document were potentially relevant. In fact, under point 90 of the Judgement of the case T-167/10 the General Court held that the Commission services are not obliged to held a meeting pursuant to article 6(3):

“[...]but merely a possibility for the Commission to confer with the applicant with a view to finding a fair solution, where it is confronted with a request concerning a very large number of documents, an optional meeting of that kind could help to avoid a scenario where the Commission decides on the disclosure of information which is of no interest to the person making the request.”

If the Commission services are not obliged to held an optional meeting for a request concerning indeed a very large number of documents, it follows that an applicant is not obliged to accept a proposal for a meeting or a video-conference as a necessary step to move forward in an application where there is merely a possibility that a large number of documents are involved.

DG RTD has to bear in mind that regarding the exceptions of article 4 of Regulation No 1049/2001 and the protected interests, the EU Courts have consistently held that the risk to the protected interest being undermined must be real and foreseeable and not merely hypothetical. By analogy, reliance on article 6(3) to confer with the applicant is appropriate only when a particular application indeed concerns a large number of the documents.

The inescapable conclusion of the above considerations is that the proposed face to face meeting or video-conference to ‘assist’ DG RTD to handle a potentially large number of documents falling within the scope of GestDem is alien to Regulation No 1049/2001.

2. MEANS OF COMMUNICATING WITH AN APPLICANT

Article 10(1) of Regulation No 1049/2001 stipulates:

“The applicant shall have access to documents either by consulting them on the spot or by receiving a copy, including, where available, an electronic copy, according to the applicant's preference [...]”

In so for far Regulation No 1049/2001 is concerned, the EU legislature clearly intended that visits at an Institution’s premises will only take place if the applicant chooses so. Moreover, articles 2 and 7 of Commission Decision 937/2001 expressly provides for the lodging of applications and dispatch of documents via “e-mail”.

It must thus be concluded:

- According to Union law, the exchange of e-mails between an Institution and an applicant is sufficient in itself for the purposes of lodging, handling and replying to applications pursuant to Regulation No 1049/2001.

- An applicant is not obliged to accept proposals of an Institution for face to face meetings or video-conferences.

- An Institution is not entitled to discriminate an applicant who is not prepared to attend face to face meetings or video-conferences.

3. UNDESIRABLE EFFECTS OF THE APPARENT DG RTD APPROACH TO HANDLE “POTENTIALLY LARGE NUMBER OF DOCUMENTS”

In so far an application pursuant to Regulation No 1049/2001 has specified the requested documents to a sufficiently precise degree, the search for and the subsequent identification of the relevant documents, candidates for release, is incumbent to the Institution alone. The DG RTD position on a potentially large number of documents and the resulting need to confer with the applicant via meeting/video-conference seems to introduce an additional burden to both the Institution and the applicant, since an additional procedural step is introduced to the two-stage administrative procedure.

The adoption of the DG RTD apparent preferred course of action regarding applications similar to this one (i.e. potentially concerning a large number of documents without providing any information at all), if adopted as a somewhat ‘standard’ reply would have undesirable consequences. Some of those are:

- It shifts part of the administrative burden of identifying the concrete documents (candidates for release) to the applicant, in spite of a precise identification of the requested documents. This is so because the applicant will play an active role in defining additional criteria for discarding release candidate documents not falling within the application scope.

- Taking to its extreme, it allows an Institution to ‘throw’ to an applicant lists of candidate documents with tens, hundreds, even thousands, of ‘irrelevant’ documents, and then requesting an applicant to pick out from those long lists the few documents the applicant thinks might be relevant.

- For a variety of fully legitimate reasons, applicants may not wish to attend face-to-face meetings with the Commission services, including video-conferences.

4. MEETINGS AND VIDEO-CONFERENCES AS IMPEDIMENTS OF EXERCISING RIGHTS AND THEIR DISCRIMINATORY EFFECTS

Recitals (4) and (13) of Regulation No 1049/2001 read:

(4) The purpose of this Regulation is to give the fullest possible effect to the right of public access to documents and to lay down the general principles and limits on such access in accordance with Article 255(2) of the EC Treaty.

(13) In order to ensure that the right of access is fully respected, a two-stage administrative procedure should apply, with the additional possibility of court proceedings or complaints to the Ombudsman.

In my view, organisation of meetings and video-conferences as some type of ‘unwritten’ policy for the purposes of article 6(3) runs to the very contrary of ‘the fullest possible effect to the right of public access to documents’ because more than 30% of the EU citizens cannot reasonably be expected to be able to accommodate such logistical arrangements. A two-stage administrative procedure is laid down in Regulation No 1049/2001. An Institution cannot introduce an ‘intermediary’ step in the first stage by proposing meetings or video-conferences for the purposes of article 6(3).

DG RTD has to bear in mind that Union law provides for ‘meetings’ at an Institution (in a broad sense of the word) for issues like hearings pursuant to Regulation No 1/2003 and oral hearings before the EU Courts. In the context of FP7 projects, ‘meetings’ are typically held during negotiations and project reviews; FP7 participants know in advance of submitting a proposal of such requirements for ‘meetings’ at the premises of DG RTD. The somewhat ‘innovative’ nature of the DG RTD proposal to organise a meeting pursuant to article 6(3), and even more in the face DG RTD not providing any information about what or why a ‘potentially’ large number of documents is involved, is in my view a disproportionate measure.

Furthermore, an Institution’s proposal to organise meetings at is premises pursuant to article 6(3) of Regulation No 1049/2001 effectively discriminates natural and legal persons not residing close to the seat of the Institution (i.e. Brussels, Luxembourg, Strasbourg). Video-conferences require suitable equipment and an adequate broadband connection, which as stated above places about 30% of citizens to a disadvantageous position.

DG RTD is also referred to an analysis dated 7/9/2013 found in the application GestDem 2013/3912, http://www.asktheeu.org/en/request/fp6_f..., about the discriminatory effects of its proposals for organising meetings and video-conferences.

5. PROPOSAL TO MOVE FORWARD

Instead of organising a meeting in Brussels, or holding a video-conference, both of which to a large extent are alien to Regulation No 1049/2001 and the Commission Decision No 937/2001, the applicant proposes the following sequence of actions, which in his view will assist DG RTD in finding the documents at issue:

P1. Consult with the current DG RTD A.4 Unit Legal matters. It is reasonable to expect that the Unit has a rather authoritative view on the matter and should be able to point the R.5 Unit to few documents.

P2. Consult a few DG RTD project officers, as well as the FP7-216480 SMART-VEI former DG INFSO Unit ICT for Transport (referred to in GestDem 2013/3761, http://www.asktheeu.org/en/request/dg_in... ), whether the respective Units consulted any ‘Guidelines’ in their internal deliberations that lead to the contractual measures of suspending those FP7 projects.

P3. Referring to the document discussed in section (1) above entitled “GUIDELINES: Claiming Liquidated Damages from beneficiaries” contact the Legal Services to make enquiries about how the Legal Services are so successful in identifying documents in replying to requests pursuant to Regulation No 1049/2001.

P4. Having, hopefully, narrowed down the “potentially” large number of documents, then DG to RTD inform the applicant about the documents that in its view may fall under the scope of the application GestDem 2013/3957 (points #2 - #4 of the application), specifying the document title, author(s), date. The applicant will then inform DG RTD the documents that in his view fall within requests #2 & #4.

6. CONCLUSIONS

Neither Union law nor the case law of the EU Courts indicates to the slightest extent that a potentially large number of documents is in itself, and without any other factor coming into play, a sufficient reason to prompt an Institution to confer with an applicant pursuant to article 6(3).

In the particular circumstances of this application, the DG RTD proposal for a meeting or a conference call is way beyond what is appropriate to resolve the issue, if an issue exists in the first place. It can therefore not be accepted.

DG RTD may consider the suggestions of section (6) above to move forward.

Yours faithfully,

Zois Zervos

Dear Communications Networks, Content and Technology (CNECT),

I refer to GestDem 2013/3956 for documents concerning DG CONNECT (points #1 - #3 - #5 of the application) that was registered on 30/7/2013. Slightly more than 30 working days later than the registratio DG CNECT has not informed me what is the status of the initial reply.

I would appreciate if DG CNECT would inform me at its earliest convenience the status of the initial reply.

Yours faithfully,

Zois Zervos

EC ARES NOREPLY, Redes de Comunicación, Contenido y Tecnologías

1 Adjuntos

Dear Sir,
Please find attached document Ares(2013)3090841 concerning "Your application for access to documents – Ref GestDem No 2013/3956 - Fair solution to address your application (Article 6 of Regulation 1049/2001)" sent by Ms ENGELBOSCH Katleen on 20/09/2013.
Kind regards.

-------------------------------------------------------------------------------------------------------------
Note: This e-mail was automatically generated by the European Commission's central mail registration system.
Replies by e-mail must be addressed to the original sender ENGELBOSCH Katleen (mailto:[email address]).
Remarque : Cet e-mail a été généré automatiquement par le système d'enregistrement central du courrier de la Commission européenne.
Toute réponse éventuelle par e-mail doit être adressée à l'expéditeur en personne, à savoir ENGELBOSCH Katleen (mailto:[email address]).

EC ARES NOREPLY, Redes de Comunicación, Contenido y Tecnologías

7 Adjuntos

Dear Sir,
Please find attached document Ares(2013)3131925 concerning "Your application for access to documents – Ref GestDem No 2013/3956 under Regulation 1049/2011 regarding public access to European Parliament, Council and Commission documents – partial reply" sent by Mr Madelin Robert on 30/09/2013.
Kind regards.

-------------------------------------------------------------------------------------------------------------
Note: This e-mail was automatically generated by the European Commission's central mail registration system.
Replies by e-mail must be addressed to the original sender Madelin Robert (mailto:[email address]).
Remarque : Cet e-mail a été généré automatiquement par le système d'enregistrement central du courrier de la Commission européenne.
Toute réponse éventuelle par e-mail doit être adressée à l'expéditeur en personne, à savoir Madelin Robert (mailto:[email address]).

Redes de Comunicación, Contenido y Tecnologías

2 Adjuntos

Dear Mr Zervos,
We refer to your email dated 27 July 2013 in which you submit an
application for access to documents, registered on 30 July 2013 under the
above mentioned reference number.
The following three documents have been identified as corresponding to
your request:
 
- the Guide to Financial Issues relating to FP7 Indirect Actions of 18
March 2013 (more specifically pp. 31-32);
- the Amendements Guide to FP7 Grant Agreements (in particular pp. 21-22);
and
- the Termination Guidelines for FP7 Grant Agreements of 4 December 2009.
 
Please find below the links to the first two above mentioned documents
which are already public and available on the Participant Portal:
[1]http://ec.europa.eu/research/participant...
 -
[2]https://ec.europa.eu/research/participan...
 
Please find attached herewith the third above mentioned document. This
document is an internal document which was marked as "for internal
Commission use only". After a careful examination, we have however decided
to grant to you full access to this document.
 
Please note that none of these three documents can be reproduced or
disseminated for commercial purposes without prior consent given by the
Commission.
 
Yours sincerely,
Silvia BOJINOVA
Head of Unit
 
European Commission
DG Research & Innovation
R5
 
ORBN 09/151
B-1049 Brussels/Belgium
+32 229-85891
[3][email address]
 
[4]http://ec.europa.eu/research
 
 
 
 
 
 
 
 
 

References

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Dear Communications Networks, Content and Technology (CNECT),

***********

This email concerns GESTDEM 2013/3957 for which DG RTD provided the initial reply on 9/10/2013. It is kindly requested that DG CNECT forward it to DG RTD.

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

Dear Ms. Bojinova,

Thank you for your email of 9/10/2013 which is the DG RTD initial reply of GESTDEM 2013/3957.

The full release of the 'Termination Guidelines for FP7 Grant Agreements of 4/12/2009' is highly appreciated.

In my view, the Guidelines illustrate a diligent, fair, and objective approach in terminating an FP7 grant agreement, balancing just right the protection of the Union's financial interests and the legitimate interests of FP7 participants.

It is worth noting that the marking of the Guidelines 'for internal Commission use only' does not appear in the document itself (e.g. cover page, document header or footer). Therefore, the marking must have been placed somewhere else, perhaps in the a web page of the Commission's intranet where the Guidelines were found.

Yours faithfully,

Zois Zervos

Dear Communications Networks, Content and Technology (CNECT),

Referring to the application GestDEm 2013/3956 and the DG CNECT letter Ares(2013)3090841 of 20/9/2013, this message sets out the applicant's preferred priority order regarding the release in batches of the requested documents under requests #3 & #5.

As a preliminary point, the applicant has appreciated the release of the documents falling under request #1 of the initial application, Ares(2013)3131925 - 30/09/2013.

I. PROBABLE FP7 PROJECTS FALLING UNDER REQUESTS #3 & #5

It has to be emphasised from the outset that the number of FP7 projects managed by the two Units of the former DG INFSO, namely ICT for Health and ICT for Transport, which were indeed suspended pursuant to article FP7.II.8.2 and FP7.II.8.3 cannot be that high. In fact, it would very surprising if the total number of suspended FP7 projects is more than, say, ten. The argument applies a fortiori to FP7 projects of the former ICT for Health Unit suspended under FP7.II.8.2.

Even though an applicant is not required to search public websites about the FP7 projects of those two Units of the former DG INFSO, seeking to identify FP7 projects that might have been suspended, in order to set out his/her preference of examining documents pursuant to article 6(3) of Regulation No 1049/2001, the applicant has done so and has identified two such projects.

I.1. FP7-216480 SMART-VEI

The CORDIS link http://cordis.europa.eu/projects/rcn/863... indicates that the project’s start day was 2008-03-01 and the end date 2011-02-28.

The link http://www.openaire.eu/it/component/open..., indicates the start date as 29/02/2008 and the end date as 31/03/2009. The list of publications of the FP7-216480 SMART-VEI is empty, whereas FP7-224297 ARTreat (see below) has had so far 18 publications.

The above strongly suggest that SMART-VEI might, first, have been suspended pursuant to article FP7.II.8, and subsequently terminated.

It is highly relevant to note that the public register of Commission documents shows that on 28/6/2012 the Commission adopted the decision C(2012)4538/F “
Decision de la Commission relative au recouvrement de la somme de EUR 516 324,33 dans le cadre des projets PC7 216088 POCEMON, PC7 216461 CHRONIOUS et PC7 216480 Smart-Vei”, even though there has not been action before the General Court. It is clear that for one FP7 beneficiary of the SMART-VEI the Commission adopted a recovery order pursuant to article 299 TFEU.

I.2. FP7-224297 ARTREAT

The link http://cordis.europa.eu/projects/rcn/877... indicates the start date as ‘2008-09-01’ and the end date as ‘2011-08-31’. However, the link http://www.openaire.eu/it/component/open... indicates the start date as 31/8/2009 and the end date as 31/1/2013. Following a link in that web-page discloses that according to that organisation’s records the scientific research of ARTREAT has been the subject of 18 publications.

There is an interview about the successful closure of FP7 ARTREAT, http://ec.europa.eu/information_society/.... The first two lines read: “(10/09/2013) On August 31st, 2013 the ARTREAT project successfully ended after 60 months of intense activities”.

It is evident that a 36-month FP7 IP project was extended into a 60 month project, that is to say it was extended by 2 whole years. Such time-extension is really very exceptional for an FP7 IP project, and this gives rise to the very reasonable expectation that the project was indeed suspended.

It is highly relevant to note that ARTREAT is very extraordinary in several other respects. This is outlined below.

Comparing the ARTREAT consortium indicated in the above CORDIS link with the project’s website,
http://www.artreat.org/index.php?option=..., it emerges that six of the original partners withdraw from ARTREAT and a new one was introduced. The withdrawals included the coordinator.

From the pending Case T-106/13 before the General Court (lodged on 2/2/2013), Synergy Hellas v Commission, it is obvious that the applicant claims that the Commission terminated its participation in ARTREAT in contravention of the contractual terms. From the summary of the application, it is inferred that the Commission terminated the participation on or about 14/6/2012. Therefore, seven of the original participants ended up with their participation terminated, either on their own volition or by the Commission.

The above strongly suggest that ARTREAT is a truly exceptional FP7 IP project.

II. APPLICATION OF ARTICLE 4.1.B TO GRANT PARTIAL ACCESS

The applicant categorically states that he is not requesting the transfer of personal data within the meaning of article 8.2 of Regulation No 45/2001. Furthermore, DG CNECT is obliged to respect the mandatory exception of article 4.1.b and expunge the parts of the documents disclosing the identities of natural persons – data subjects.

However, in the applicant’s view DG CNECT should NOT withhold the identities of natural persons – data subjects from the released suspension letters provided that the following two conditions are simultaneously satisfied about a natural person:

C1. He/she is the very addressee of the DG CNECT suspension letter, in his/her capacity as an ‘official’ of the coordinator. Such a person may have signed the FP7 grant agreement as the coordinator's legal representative, or he/she is the person expressly referred to in article 8(1) of the main part of FP7 Grant Agreement (typically the coordinator’s ‘project manager’).

C2. At some point in time, his/her identity has been publicly and lawfully disclosed either (i) in the official documents provided by the statute and published in some kind of a Government Gazette (or equivalent, or is public record) for the legal representatives of legal entities, or (ii) as the contact person in the Cordis project web-page, or the project website (see for instance http://www.artreat.org/index.php?option=... for the current contact person). This includes also includes the former legal representatives and contact persons, and not just the current ones.

III. APPLICATION OF ARTICLE 4.2 THIRD INDENT TO GRANT PARTIAL ACCESS

Conceivably, DG CNECT may rely on article 4.2 third indent to refuse disclosure of either parts or the entire suspension letters. The initial application has elaborated at some length why in the applicant’s view the exception is not applicable.

Conceivably, DG CNECT may invoke article 3 of Regulation No 1906/2006 ‘FP7 rules of participation’ to refuse access, but such reliance presupposes that DG CNECT expressly stated in the suspension letter that the letter is to be regarded as confidential. In addition, article FP7.II.9 provides that the Commission will treat as confidential information communicated to it by the beneficiaries, provided a beneficiary designated the information as ‘confidential information’. This implies that unless the suspension letter and the associated contractual correspondence was marked as ‘confidential’, the provisions of the aforementioned article 3 and FP7.II.9 are not applicable to the suspension letters.

Finally, DG CNECT has to consider that by their very nature suspension letters are circulated to the entire consortium, which means that several tens of individuals may lawfully hold copies.

IV. PREFERRED PRIORITY ORDER

In view of the above facts and analysis, the applicant’s preferred order of priority, with decreasing preference, is listed below.

1. FP7-216480 SMART-VEI, provided that the project was suspended pursuant to article FP7.II.8

2. FP7-224297 ARTREAT, provided that the project was suspended pursuant to article FP7.II.8

3. Other FP7 projects of the ICT Unit for Health suspended pursuant to article FP7.II.8.2

4. Other FP7 projects of the ICT Unit for Health suspended pursuant to article FP7.II.8.3 of the ICT Unit for Health

5. FP7 suspended projects of ICT Unit for Transport

For the avoidance of any doubt, in the above priority list a lower figure indicates a higher preference.

Yours faithfully,

Zois Zervos

Dear Communications Networks, Content and Technology (CNECT),

Referring to GestDem and my email of 16/10/2013, http://www.asktheeu.org/en/request/fp6_f..., this is to state my concerns about the apparent DG CNECT delay tactics to provide an initial response.

Four months after the submission of the application not a single document has been released by DG CNECT. The documents at issue are not that much unusual, and it is difficult to see that they might be subject to an exception of article 4 of Regulation 45/2001. In so far the FP7-216480 SMART-VEI and FP7-224297 ARTREAT are concerned, from the public information it can be inferred that those two grant agreements were indeed suspended. It implies that DG CNECT has no reason not to release the two suspension letters.

I would therefore expect that DG CNECT would swiftly provide me with the initial response.

Yours faithfully,

Zois Zervos

Dear Communications Networks, Content and Technology (CNECT),

I would like to kindly protest about the DG CNECT disregard of its obligations under the application GestDem 2013/3956, requests #3 and #5.

It is nearly certain that FP7-216480 SMART-VEI and FP7-224297 ARTREAT were indeed suspended. Several of beneficiaries of those projects are still active in FP7 and will probably be active in Horizon 2020. It is straightforward to contact their research divisions and ask them for a copy of the suspension letters.

A few of the beneficiaries are public sector organisations. Under the national law granting access to documents, it may be possible to obtain copies exercising that right under national legislation.

Moreover, individuals who were working in those two projects are easily identifiable and their email addressed are in the public domain.

The above considerations suggest that obtaining copies of the requested suspension letters from third parties is not that difficult.

Before embarking in such course of action, bringing to the attention of third parties the present application, I would like to exhaust what Regulation 1049/2001 entitles me to receive from DG CNECT.

I would therefore be obliged if DG CNECT would provided me with the initial response concerning requests #3 and #5.

Yours faithfully,

Zois Zervos

Redes de Comunicación, Contenido y Tecnologías

3 Adjuntos

Dear Sir,
 
Please find attached document Ares(2013)3781666 regarding "Your
application for access to documents – Ref GestDem No 2013/3956 under
Regulation 1049/2011 regarding public access to European Parliament,
Council and Commission documents –final reply" sent by Mr Madelin Robert
on 20/12/2013.
 
Kind regards.
 
European Commission
DG CONNECT - R4 Compliance
Secretariat
BU25 1/72
 
 
 
 

Dear Communications Networks, Content and Technology (CNECT),

This is a confirmatory application for GestDem No 2013/3956, in particular the second batch of documents released by way of the initial response Ares(2013)3781666 - 20/12/2013. It is to be forwarded to the Secretariat-General.

**********

Dear Transparency Unit,

Pursuant to article 7(2) of Regulation No 1049/2001 a confirmatory application is respectfully submitted for the partially released documents as annexes to the initial response Ares(2013)3781666 - 20/12/2013, GestDem No 2013/3956, http://www.asktheeu.org/en/request/714/r..., http://www.asktheeu.org/en/request/714/r....

The application concerns requests #3 and #5 of the initial application.

This application is logically divided into the following four parts:

Firstly, it complains about the 4.5 months it took DG CNECT to provide the initial response, and the structure of the response itself.

Secondly, it respectfully argues that DG CNECT erred in law, specifically article 4(6) of Regulation 1049/2001, by having redacted the released document more than what is strictly necessary to comply with articles 4(1)(b) and 4(2) first indent (protection of commercial interests).

Thirdly, it analyses the public information about the FP7- 224297 ARTREAT project and the coordinator (in April 2011), from which a very disturbing picture emerges – specifically that it was simply impossible that in April 2011 the project was in a situation of ‘exceptional circumstances rendering its execution excessively difficult or uneconomic’. It questions that DG INFSO was lawfully entitled to grant the suspension pursuant to article FP7.II.8.2.

Fourthly and finally, in view that the analysis of the initial response and the ARTREAT suspension gives rise to a host of extremely serious concerns about the circumstances of FP7 projects being suspended by DG INFSO/CNECT, an overriding public interest has manifested in order to scrutinise the legality of the DG INFSO practices in suspending projects pursuant to articles FP7.II.8.2 & FP7.II.8.3.

It is emphasised that it is the unlawful DG CNECT refusal to disclose the documents at issue (suspension letters) that has caused me to lodge a very lengthy confirmatory application. For instance, I had to search the public Internet for information about ARTREAT, and then draw inferences about its most extraordinary suspension, just in order to advance an argument for an overriding public interest.

Put differently, the DG CNECT desire to keep away from public view its very peculiar practices compels applicants to go to extraordinary lengths just in order to argue for the release of documents, which other Directorate-Generals would have released without much fuss. When it comes to grant agreements and transparency, the DG CNECT conduct is to be contrasted with the DG HOME full-transparency attitude. Two prime of examples of the DG HOME transparency are found in the two application under Regulation 1049/2001 http://www.asktheeu.org/en/request/contr... and http://www.asktheeu.org/en/request/contr.... DG HOME fully released the requested documents, except personal data.

I. EXCESSIVE DURATION OF THE FIRST STAGE OF THE ADMINISTRATIVE PROCEDURE

GestDem 2013/3956 was registered on 30 July 2013. It took DG CNECT more than 4.5 months to grant access to:

1. The two DG INFSO letters concerning the suspension of the FP7- 224297 ARTREAT under article FP7.II.8.2; the inference that the undisclosed project is ARTREAT is explained further below.

2. Four letters concerning the suspension of 3 FP7 projects under article FP7.II.8.3, whose identity was withheld.

It cannot be accepted that an application concerning 6 documents – a mere 18 pages - falls under the ambit of article 7(3) ‘In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents’. Such a delay is unmistakably an indication that the release of the 4 suspension letters has touched a raw nerve.

II. FAILURE TO DISCLOSE THE CORRESPONDENCE BETWEEN REQUESTS #3 & #5 AND THE RELEASED DOCUMENTS

II.1. IDENTIFICATION OF PROJECTS SUSPENDED UNDER ARTICLES FP7.II.8.2 and FP7.II.8.3

Request #3 and #5 concerns suspensions under article 8.2 and 8.3 respectively. The initial response is totally silent about which pages of Annex 1 correspond to request #3 and #5.

It is only from the examination of the content of the partially released letters that it is possible to identify that documents Ares(2011) 569225 – 25/05/2011 and Ares(2011) 692421 - 28/06/2011 concern a suspension under article FP7.II.8.2.

Similarly, it is only from reading the contents of the 4 documents (Ares(2012)156498 - 10/02/2012, Ares(2012)1173106 - 05/10/2012, Ares(2012)79696 - 24/01/2012, Ares(2013)536732 - 03/04/2013) that it emerges that the 3 projects were suspended under article FP7.II.8.3.

II.2. IDENTIFICATION OF FP7-224297 ARTREAT

As a preliminary remark, the email of 16 October
http://www.asktheeu.org/en/request/fp6_f... specifically suggested that ARTREAT was suspended.

From the dates of the 6 released documents it is evident that the document Ares(2011) 569225 – 25/05/2011 grants suspension of a FP7 agreement under article FP7.II.8.2. DG INFSO had agreed to the request to suspend that agreement dated 29/4/2011, Ares(2011) Ares (2011) 483770. All 3 projects suspended under FP7.II.8.3 stated from 2010 onwards. In April 2011 ARTREAT was in month 32, or thereabout. The inescapable conclusion from the dates of the 6 released documents and the contents of the letters of 25/5/2011 and 28/6/2011 concern ARTREAT.

The email of 16 October provided arguments about the suspension of ARTREAT. By checking the contents of public ARTREAT web site (e.g. the deliverables table http://artreat.org/index.php?option=com_...) it emerges that the coordinator was replaced sometime in 2011.

Yet despite all that public information, DG CNECT avoided to disclose the parts of the documents dated 25/5/2011 and 28/6/2011 revealing the identities of the ARTREAT grant agreement and the then coordinator.

III. PERVERSE CONSEQUENCES OF THE DG CNECT PRACTICE OF NOT DISCLOSING THE CORRESPONDENCE BETWEEN REQUESTS AND RELEASED DOCUMENTS

Applicants lodge applications framed in distinct request for legitimate reasons, which also facilitate the identification of documents by the Institution. In other words, framing applications in distinct requests facilitates the swift release of documents, and probably lessens the administrative burden.

Applicants faced with this DG CNECT practice - of not informing the applicants which of the disclosed documents correspond to each distinct request - might be compelled to lodge numerous distinct applications under Regulation 1049/2001, perhaps one every few days, with each application concerning a relatively short time-period in which the documents were drawn up.

In the instant application, the undersigned could have lodged 10 separate applications (instead of a single one), with each application limited to a three-month period (e.g. first, second quarter of 2010 and so on). By lodging separate applications for suspension letters under FP7.II.8.2 and FP7.II.8.3, the number of applications would have been 20. Compelling applicants to go down the road of such an absurd serial lodging of applications would be in nobody’s interest.

In conclusion, it is expected that in the response to the confirmatory application the Secretariat-General will clearly indicate which documents correspond to requests #3 and #5.

IV. ERRONEOUS INTERPRETATION OF ARTICLE 4(2) FIRST INDENT OF REGULATION 1049/2001 – INSUFFICIENT STATEMENT OF REASONS

It appears the only DG CNECT justification of granting partial access under article 4(1) first indent is set out in the sentence:

‘Therefore, the information relating to individuals and/or legal entities that could damage
their commercial interests has been expunged on the basis of the above-mentioned
exception.’

It must be presumed that DG CNECT was primarily referring to legal entities in so far commercial interests are concerned, since the addressees of the letters and the other concerned FP7 beneficiaries therein are legal persons. Admittedly, one letter refers to natural persons, for whom commercial interests may well be at stake.

The DG CNECT justification itself suffers from the following very serious defects:

1. It does not explain at all how the disclosure of the requested documents would create the reasonably foreseeable risk of undermining the protected commercial interests.

2. It is silent as to which are exactly the legal persons whose commercial interests are at stake. In particular, it does not explain if it concerns the coordinator, the FP7 beneficiary not acceded to the grant agreement, and other beneficiaries.

3. It is very generic, which means that it does not follow the case-law of the EU Courts. In particular, the Courts have consistently annulled decisions refusing access to documents when the considerations were not specific to the content of the documents.

4. All documents were considered en bloc, without even attempting to draw a distinction between suspensions under FP7.II.8.2 and FP7.II.8.3, in spite of the vast differences between the causes of a suspension under those two articles. This is further analysed below.

V. ESSENCE OF THE DG CNECT REFUSAL TO GRANT MORE EXTENSIVE ACCESS – INCONSISTENCY WITH THE DG CNECT TRANSPARENCY POLICY - ARTICLE 3 OF REGULATION 1906/2006 PROTECTING CONFIDENTIALITY

Transparency means that the public is entitled to have access to information, data and documents about details of the FP7, including contractual correspondence. That is precisely why the Commission requires the production of project leaflets, and summaries for the public of a project’s work and achievements. Scientific publications arising out of a FP7 grant agreement is also a different way of informing, albeit indirectly, the general public.

Furthermore, by concluding FP7 grant agreements, thus obtaining taxpayers funds for its own direct benefit (participants enter into FP7 on their own volition), participants are fully aware about the transparency obligations of the Commission.

In FP7, sensitive information – thus subject to confidentiality – is specifically protected by article 3 of Regulation 1906/2006. For items not specifically defined in the FP7 grant agreement, all it takes for information to be classified as confidential is the mere declaration of the information provider, be it either the Commission or a beneficiary.

Since for the six letters at issue DG INFSO/CNECT did not state that their content was confidential - a mere line in each letter stating their confidential status would have sufficed to treat them as confidential within the respective FP7 consortia - it must be inferred that DG INFSO/CNECT did not regard them their content as confidential.

DG CNECT publishes extensive data sets about the FP7 projects managed by it at the link
http://ec.europa.eu/digital-agenda/en/do.... This includes the funding or every single FP7 beneficiary for each individual FP7 project managed by DG INFSO/CNECT.

Such a transparency policy is in sharp contrast with the handling of this application. It suggests that there is something odd about those four projects.

VI. SPECIFIC CONSIDERATIONS ABOUT THE ARTREAT SUSPENSION

VI.1. FIRST ARTREAT COORDINATOR

VI.1.A. ZERO FUNDING IN METABO & ARTREAT DISCLOSED IN DG CNECT DIGITAL EUROPE DATA SETS

Relevant for this application are the following:

i) Excel file with the data of the period 2007-2012
a.1. Row 15604 reveals that the beneficiary no funding at all in ARTREAT.
a.2. Row 15602 reveals that in FP7- 216270 METABO the beneficiary received no funding at all in METABO.

ii) Excel file with the data of the period 2007-2011. This was probably published in 2012
b.1. Row 2417 reveals that the beneficiary had an ARTREAT ‘budgeted funding’ of € 435,541.
b.2 Row 2415 reveals that in FP7- 216270 METABO the beneficiary had ‘budgeted funding’ of € 420,000.

It must be concluded that the first coordinator had ultimately received zero funding in ARTREAT. The only possible explanation is that either for some reason the first coordinator did not claim any funding (which is nearly impossible for a coordinator of a FP7 Integrated Project at month 32), or DG INFSO requested the full reimbursement of the ARTREAT funding – presumably n view of the audit findings – and the first coordinator did indeed returned the entire amount of subsidies it received in ARTREAT.

VI.1.B. INTRUSIVE RISK-BASED AUDIT, 4-7 APRIL 2011

It is absolutely certain that the ARTREAT coordinator was the target of the MOST INTRUSIVE kind of DG INFSO risk-based audits. This is indicated by the DG INFSO request to obtain prior to 4/4/2011 a very extensive data set http://www.asktheeu.org/en/request/714/r... (page 3 of the Annex to the audit letter) : (i) General ledger as extracted from the accounting system to be used for reconciliation purposes as referred to in point 1, (ii) Accounts receivable ledger, (iii) Accounts payable ledger, (iv) Sales ledger.

The following are noteworthy about requesting an auditee for such an extensive data set:

1. It contains every single financial transaction of the auditee, down to the Euro-cent level
2. For a company of the size of the first coordinator that had an annual turnover in the order of € 15 million, at least 95% of that data set is entirely irrelevant to an audit of DG INFSO projects.
3. It discloses a great deal of confidential information, conceivably business secrets
4. DG INFSO had requested it in the context of an audit, in which the Commission does not act towards the auditee (FP6 contractor, FP7 beneficiary) as a public authority.
5. It contains personal data of independent service providers – freelancers.

It is certain that DG INFSO requested this particular data set in order to check whether the auditee had had any business transactions with the ‘usual suspects’, i.e. companies that for some reason DG INFSO had the opinion that they were used as undeclared subcontractors by the auditees.

In can thus be concluded that even before the audit, DG INFSO had some very specific concerns about the auditee.

VI.1.C. OVERALL STANDING

The first coordinator was a member of a Group listed in the Paris Stock Exchange in 2010 and 2011. The published annual reports of the Group give the following turnover figures of the first coordinator:
- 2010: € 15.2 million
- 2011: € 13.3 million

A search of the TED part of the Europa web site discloses that Union Institutions and bodies awarded to the first coordinator the following IT services contracts in 2011-2012:

- European Medicines Agency, 24/11/2011, €15 million budget
- Publications Office, 22/7/2011, €1.24 million
- European Investment Bank, 30/11/2011, #3 in a framework contract worth between €2 - €15 million
- Publications Office, 10/10/2012, Lot 2, €1.8 million
- Eurostat, 16/11/2012, €6.6 million, 190358-2013

The relevant award notices in TED are under reference numbers 410610-2011, 293504-2011, 372860-2012, 190358-2013.

It must thus be inferred that the first coordinator was objectively in a good overall financial standing in April 2011. Otherwise, Union Institutions and bodies would not have awarded IT service contracts worth nearly €25 million in 2011-2012 to the first ARTREAT coordinator.

VI.1D. DECISION TO WITHDRAW FROM ARTREAT

The letter Ares(2011 )692421 - 28/06/2011 states:

‘I note your indication that [expunged] has decided to end its participation in the [expunged], meaning that the consortium is in need of appointing a new co-ordinator’

There can be no doubt that prior to 28/6/2011 the ARTREAT coordinator had indicated to DG INFSO its intention to withdraw from the project.

VI.1.E. CONCLUSIONS

It is recalled that in April 2011 METABO was at month 40 and ARTREAT at month 32. In view of the ARTREAT coordinator:

1. having been audited in 5 FP6 projects and 3 FP7 projects in early April 2011 – see letter Ares(2011)258273 - 09/03/2011 http://www.asktheeu.org/en/request/714/r...
2. lodged on 29/4/2011 to DG INFSO a to suspend ARTREAT pursuant to article FP7.II.8.2,
3. having declared to DG INFSO prior to 28/6/2011 its intention to withdraw from ARTREAT,
4. by 31/12/2012 the ARTREAT coordinator had fully reimbursed the Commission with all funding it had received in METABO and ARTREAT,

it appears that something rather peculiar took place in April 2011 to the ARTREAT coordinator.

Having due regard to the above, and that a mere 3 weeks had elapsed between the field audit between 4-7 April 2011 and the request for suspension on 29 April 2011, it can be inferred that the most likely cause of the request to suspend ARTREAT was what was uncovered during the audit of the ARTREAT coordinator.

VI.2. FLUIDITY OF THE ARTREAT CONSORTIUM

From an analysis of the documents in the ARTREAT project website http://www.artreat.org, in conjunction with the previous and past records about ARTREAT in the DG CNECT Digital Agenda for Europe data sets http://ec.europa.eu/digital-agenda/en/do..., the following inferences are made as regards the ARTreat consortium:

1. SAS (UK) did not accede to the grant agreement
2. Sorin Biomedica Cardio (IT), Tecmic( PT), EURO (PMS) (UK) withdrew from ARTREAT in 2009 or in 2010.
3. World Match Limited (MT) withdrew in 2010 or 2011
4. B.Braun, (DE) entered the consortium in 2010 or 2011
5. ATCOM (GR) has been some kind of a phantom partner, as it does not appear in documents the ARTREAT consortium disseminated to the public.
6. The first coordinator withdrew in 2011.

Furthermore, the Order of 21/9/2012 of the General Court in the case T-365/12 R reveals that by way of the letter Ares (2012) 784816 of 29/06/2012 DG INFSO terminated the participation of d.d. Synergy in ARTREAT & METABO.

ARTREAT it truly extraordinary, since by February 2011 five beneficiaries-partners had withdrawn. Yet such drastic changes in the consortium structure had not impeded the progress, since in April 2011 the project had reached month 32, with a ‘target’ end at month 36.

VI.3. CONCLUSIONS

It is impossible to see what kind of event(s) caused OBJECTIVELY in late April 2011 ARTREAT to be in a state of ‘exceptional circumstances rendering its execution excessively difficult or uneconomic’.

That the project continued after the withdrawal of the first coordinator suggests that the consortium – except the first coordinator – was not necessarily behind the ‘decision’ to request a one-month suspension.

The timing of the request of suspension strongly suggests that something was unearthed at the financial audit of the coordinator in early April 2011.

Presumably, the ARTREAT suspension prejudiced the interests of several members of the consortium, and conceivably researchers whose scientific work was delayed as a result of the suspension.

In view of all the above, it can be surmised that the ARTREAT suspension was merely a pretext for other purposes. That DG INFSO acceded to the request for suspension under FP7.II.8.2 further suggests that DG INFSO had a central role in creating that pretext.

VII. SPECIFIC CONSIDERATIONS ABOUT THE 4 LETTERS IMPOSING A SUSPENSION UNDER FP7.II.8.3

VII.1. GLOBAL CONSIDERATIONS

In essence, DG has refused to disclose the 3 specific FP7 grant agreements which were suspended under article FP7.II.8.3. The contents of the letters suspending the 3 grant agreements under article 8.3 disclose very serious issues as regards the compliance with the grant agreement.

These are not matters that can be considered as ‘private affairs’ or ‘commercial affairs’ of the beneficiaries, which fall under the protection article 4(1) first indent of Regulation 1049/2001 affords to the legitimate commercial interests of entities. On the contrary, DG INFSO/CNECT has attributed (at least in its view) to the beneficiaries non-compliance with the FP7 agreement. That was the sole reason for suspending the projects.

Non-compliance with the contractual obligations of a FP7 grant agreement is not something that automatically deserves to be kept out of the public. The more serious the breach of the contractual obligations, the more ‘damaging’ will be a disclosure of information about it. Such logic will ultimately lead to the concealing from the public of instances of outright fraud in FP7.

By entering into a FP7 grant agreement beneficiaries obtain partial funding from the pubic pursue of their RTD activities; they are the sole owners of the RTD results. FP7 beneficiaries are, or ought to be, aware of the transparency obligations of the Commission. Beneficiaries cannot legitimately expect that, when they infringe the contractual provisions in such a particular context, their ‘commercial interest’ will preclude the disclosure of documents to the taxpayers.

By not disclosing the identity of the FP7 project DG CNECT refused, essentially, to disclose what is objectively a mere fact (e.g. effective change of coordinator, non accession to the agreement). There are several ways of establishing the identity of those 3 FP7 projects. One particular way is outlined below by ‘exploiting’ Regulation 1049/2001:

1. An application is lodged for all FP7 the grant agreements signed in the context of a specific call for proposals of DG INGSO/CNECT, such as call FP7•ICT-2011-7 with deadline 18/1/2011. Since the identities of the FP7 beneficiaries and the total funding are published, DG CNECT may not refuse access.

2. Separate applications are subsequently lodged for each grant agreement requesting documents drawn up on the dates indicated by the 4 suspension letters at issue. In each application, the FP7 project is named.

3. DG CNECT would answer in all but very few requests that the documents do not exist. This will allow the identification of the projects.

In view of the above, it is submitted that DG CNECT erred in law by refusing to disclose the identity of the 3 FP7 projects.

VII.2. OVERZEALOUS REDACTION

DG CNECT fully refused access to the annexes of the 4 letters (pages 4, 12 and 16 of Annex 1). There is no lawful reason to having so extensively redacted these three pages.

VII.3. REQUEST FOR TRANSFER PERSONAL DATA

Under items (5) – (7) in page 2 of the document Ares(2012)79696 - 24/01/2012 DG CNECT requested the transfer of personal data of third parties to the FP7 grant agreement:

‘5) Detail of the employment relationships between and ….
6) What is the role of …grant agreement?
7) What is the relationship between … and … in the implementation of the …. and ….’

This transfer is in contravention of article 5, 7, and 25 of Regulation 45/2001, since it would have taken place in a purely contractual context.

VII.4. UNEQUAL TREATMENT OF DIFFERENT FP7 CONSORTIA BY DG INFSO/CNECT

In ARTREAT DG INFSO had been very accommodating with drastic changes of the consortium structure. In the other 3 projects, a mere change of a single partner was sufficient to prompt DG INFSO/CNECT to suspend the project. By the standards of these 3 projects, DG INFSO ought to have suspended, if not terminated ARTRET, as soon as it was informed that SAS, TECMIC, SORIN and EURO (PMS) had effectively withdrawn their participation.

VIII. OVERRIDING PUBLIC INTEREST

This argument is advanced after the partial release of the documents. It could not have been advanced at the initial application.

The overriding public interest is to scrutinise:

1. Why DG INFSO had been so accommodating with the drastic changes of the ARTREAT consortium until April 2011 (if not later), whilst in less than a year DG INFSO was far more rigorous for another project.

2. What exactly was the pretext upon which the first coordinator requested - and DG INFSO subsequently granted - the ARTREAT suspension pursuant to article FP7.II.8.2, especially since the drastic changes of the consortium structure were not sufficient to suspend the project under FP7.II.8.3. Objectively, there was no question whatsoever of ARTREAT being in April 2011 in ‘exceptional circumstances rendering its execution excessively difficult or uneconomic’. Reliance on such a provision to suspend a €10 million project, especially after an external financial audit of 8 projects 3 weeks earlier, suggests the first coordinator and DG INFSO hatched TOGETHER some kind of a plot for the suspension

3. What are the circumstances under which DG INFSO had unlawfully requested the transfer of personal data of third parties to a FP7 grant agreement, and why such an unlawful transfer was directly linked with a suspension under FP7.II.8.3.

It worth also bearing in mind that DG INFSO had been the architect of the grave breaches of Regulation 45/2001 in every single external financial audit, which culminated in the inclusion of false statements in the prior notification DG INFSO DPO-3338.1.

IX. CONFIRMATORY APPLICATION

A confirmatory application is hereby respectfully submitted for requests #3 and #5. It is fully justified to expect that the Secretariat-General will have due regard to all the foregoing analysis and arguments.

Yours faithfully,

Zois Zervos

Redes de Comunicación, Contenido y Tecnologías

Dear Sir,

Thank you for your email dated 21/01/2014.

We hereby acknowledge receipt of your confirmatory application for access to documents, which was registered on 21/01/2014 under reference number GestDem 2013/3956 – Ares(2014) 130318.

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 11/02/2014. 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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Redes de Comunicación, Contenido y Tecnologías

2 Adjuntos

 
Dear Mr Zervos,

Kindly find herewith a letter concerning your confirmatory application for
access to documents (gestdem 2013/3956).
Yours sincerely,
 
 
Carlos Remis
SG.B.4.
Transparence.
Berl. 05/329.