FP6 & FP7 programmes, personal data protection, legal mandate to audit on-the-spot

La solicitud fue rechazada por Tribunal de Cuentas Europeo.

Dear European Court of Auditors,

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 refer to the manifest personal data processing by the Court in on-the-spot audits of FP5 and FP6 contractors and FP7 beneficiaries.

One example to illustrate the depth and breadth of the personal data processing is the Court’s 5-page document entitled ‘Annex I, Audit Questionnaire - DAS 2011, Mission on the spot’. The document is just a multi-page 5-column table. Parts of page 1 and page 2 (first and second columns only) read:

*** Page 1 ***

3. Do the amounts in the cost declaration (form C) reconcile to the beneficiary’s accounting records?
4. Verify:
• if the correct cost reporting model (FP6) or funding rates (FP7) have been used and
• if the beneficiary has an approved COM/COMAV (for FP7 only).

*** Page 2 ***

I) Personnel costs

8
• Obtain a list of all personnel involved in the indirect research actions, indicating period(s) they worked for the project as well as their position.
• Obtain copies of employment contracts for all the relevant employees.
• Obtain list of absence dates (holidays/illnesses) for project staff

9. Was the standard personnel practice complied with? (contract type, remuneration, subordination,…)
If not, is it acceptable?

10. Is the time recording in accordance with the Commission’s requirements (e.g. time sheets)?

11. Can you confirm that project staff did not record any time on the project during holidays or illness periods?

12. Is the calculation of hourly labour costs correct?

13. Is the calculation of productive hours correct?

It is striking that question no 10 is about the Commission’s requirements about time-recording, that is to say one of the two contracting parties, and with no reference to the Union law or contractual provisions. It is not immediately obvious that such an attitude is fully in line with verifying the legality of transactions.

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

Copies of the following documents drawn up by the Courts are kindly requested:

1. The internal documents drawn up prior to 31/12/2012 setting out a legal analysis about the lawfulness of the Court’s personal data processing of third parties to the FP5-FP6-FP7 audited contracts (i.e. the persons the contractor-beneficiary charged to the audited projects), except those drawn up by the Data Protection Officer.

2. The documents drawn up by the Data Protection Officer prior to 31/12/2012 setting out a legal analysis about the lawfulness of the Court’s personal data processing of third parties to the FP5-FP6-FP7 audited contracts (i.e. the persons the contractor-beneficiary charged to the audited projects).

3. The article 25 of Regulation 45/2001 prior notification in force in 2009 covering the Court’s personal data processing of third parties to the audited FP5, FP6 and FP7 contracts, that is to say the persons the contractor-beneficiary charged to the audited projects.

4. The article 25 of Regulation 45/2001 prior notification in force in 2010 covering the Court’s personal data processing of third parties to the audited FP5, FP6 and FP7 contracts, that is to say the persons the contractor-beneficiary charged to the audited projects.

5. The article 25 of Regulation 45/2001 prior notification in force in 2011 covering the Court’s personal data processing of third parties to the audited FP5, FP6 and FP7 contracts, that is to say the persons the contractor-beneficiary charged to the audited projects.

6. The article 25 of Regulation 45/2001 prior notification in force in 2012 covering the Court’s personal data processing of third parties to the audited FP5, FP6 and FP7 contracts, that is to say the persons the contractor-beneficiary charged to the audited projects.

7. A sample of 10 documents drawn up in 2009 pursuant to article 12(1) of Regulation 45/2001 regarding the manifest personal data processing by the Court of third parties to the audited FP5, FP6 and FP7 contracts, that is to say the persons the contractor-beneficiary charged to the audited projects.

8. A sample of 10 documents drawn up in 2010 pursuant to article 12(1) of Regulation 45/2001 regarding the manifest personal data processing by the Court of third parties to the audited FP5, FP6 and FP7 contracts, that is to say the persons the contractor-beneficiary charged to the audited projects.

9. A sample of 10 documents drawn up in 2011 pursuant to article 12(1) of Regulation 45/2001 regarding the manifest personal data processing by the Court of third parties to the audited FP5, FP6 and FP7 contracts, that is to say the persons the contractor-beneficiary charged to the audited projects.

10. A sample of 10 documents drawn up in 2012 pursuant to article 12(1) of Regulation 45/2001 regarding the manifest personal data processing by the Court of third parties audited FP5, FP6 and FP7 contracts, that is to say the persons the contractor-beneficiary charged to the audited projects.

11. In view of employment contracts most definitely containing information covered by the professional secrecy obligations of article 339 TFEU (even arguably business secrets), the document(s) setting out an analysis of how the Court’s manifest processing of such information - in particular in view of the circumstances of the processing (e.g. keeping completely in the dark the third parties to the audited projects about it) -, has been compliant with the EU Courts case law, in particular the Cases 53/85 Akzo, T-353/94 Postbank, T-198/03 Bank Austria Creditanstalt (§29-34, §71-74).

12. The documents setting out an analysis of the lawfulness of the Court’s processing of personal data originating from the Research family DGs. In this context, it is pointed out that the Research family DGs have breached numerous provisions of Union and national law on personal data protection, with the crown of the illegalities being the two false statements in DG ENTR DPO-3334.1, DG INFSO DPO-3338.1, DG RTD DPO-3398.1 (summer 2012),and DG MOVE-ENER DPO-3420.1 ‘This processing has been submitted to the EDPS who concluded that Article 27 is not applicable’ and ‘3. Sub-Contractors —’.

13. The documents setting out an analysis of the lawfulness of the Courts on-the-spot audits of FP5-FP6-FP7 contractors with its own staff and at the premises of the contractors, in particular what provisions of Union law authorising the Court to do so. Some considerations about it are given further below.

14. Regarding any ten (10) on-the-spot audits of FP5-FP6-FP7 contractors by the Court in the period 2009-2012, the documents with which the Court notified the relevant national audit body pursuant to article 287(3) TFEU ‘In the Member States the audit shall be carried out in liaison with national audit bodies or, if these do not have the necessary powers, with the competent national departments’. In identifying those 10 audits, the applicant’s kindly requests that the Court select the 10 audits on the basis of the language of the correspondence, which is in decreasing order: (1) English, (2) Greek, (3) French, (4) Italian, (5) Spanish.

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

OVERRIDING PUBLIC INTEREST

1. Fundamental right of personal data protection

To appreciate the seriousness of the matters and the public’s great interest, the Court’s staff may find useful to read the legal analysis in a very recent application pursuant to Regulation No 1049/2001 (Gestdem 2013/3761) at the asktheeu.org, http://www.asktheeu.org/en/request/dg_in....

Requests #1 to #12 concern the fundamental right of personal data protection. Full release is necessary, except the personal data in the documents of requests #7 to #10.

2. Court’s mandate to audit on-the-spot and at their premises FP6 contractors and FP7 beneficiaries

The following paragraphs outline the applicant’s doubts about to what extent the Court is duly authorised to audit FP6 contractors and FP7 beneficiaries on-the-spot and in a Member State.

As a preliminary observation, the Court is neither a Court of Law nor a Tribunal and therefore it is not covered by the principle of sincere cooperation between the Judicial Authorities of the Union and those of the Member States. Principles like the unfettered evaluation of evidence lawfully produced before a Court of Law do not apply to the Court of Auditors.

Article 142 of Regulation No 1605/2002, as amended (in force until 31/12/2012), concerns on-the-spot audits at the premises of an Institution and not in the premises of a contractor-beneficiary.

Article 18(4) of Regulation No 2324/2002 FP6 Rules of Participation reads:
“4. Pursuant to Article 248(2) of the Treaty, the Court of Auditors may verify the use of the Community's financial contribution”

In my view, this provision does not expressly authorise the Court to audit a FP6 contractor in a Member State. Furthermore, a ‘verification of the use’ is not necessarily a financial audit per se.

Article 19(10) of Regulation No 1605/2006 FP7 Rules of Participation reads:
“10. The model grant agreement shall provide for supervision and financial control by the Commission or any representative authorised by it, and the Court of Auditors.”

This provision merely mandates the insertion into the grant agreement of a contractual right of the Court of Auditors for ‘financial control’. It does not expressly state that the ‘financial control’ will take place at the beneficiary’s premises. In addition, the Court will carry out the ‘financial control’ pursuant to a provision of a private law contract (FP7.II.22) and not pursuant to Union. There are fundamental legal differences between a contractual ‘financial control’ and a ‘financial control’ pursuant to Union law.

As the EU Courts have always held, any intervention in a Member State by an Institution into to the private affairs of private law legal person needs to have a clear and unambiguous mandate in Union law. Article 7 of Regulation No 2185/96 and article 20 of Regulation No 1/2003 are two examples of Union law expressly authorising the Commission to carry out on-the-spot inspections. Union law expressly provides that the economic operators are required to submit to those inspections. The former provides for the assistance of the competent national authorities to the Commission inspectors in case of non-submission by the economic operator. The latter provides inter alia for the imposition of severe administrative fines in case of non-submission. In other words, when the EU legislature intended to confer on an Institution to power to intervene in the private affairs of an economic operator for the public interest, not only did it expressly state it in the legislative act, but it also included provisions for dealing with cases of non-submission or non-compliance. There is absolutely nothing of this kind of clarity for the Court’s on-the-spot audits of FP6 contractors and FP7 beneficiaries.

We will now examine the provisions of article 287(3) TFEU that indeed provides for on-the-spot audits:

“The audit shall be based on records and, if necessary, performed on the spot in the other institutions of the Union, on the premises of any body, office or agency which manages revenue or expenditure on behalf of the Union and in the Member States, including on the premises of any natural or legal person in receipt of payments from the budget. In the Member States the audit shall be carried out in liaison with national audit bodies or, if these do not have the necessary powers, with the competent national departments. The Court of Auditors and the national audit bodies of the Member States shall cooperate in a spirit of trust while maintaining their independence. These bodies or departments shall inform the Court of Auditors whether they intend to take part in the audit.

The other institutions of the Union, any bodies, offices or agencies managing revenue or expenditure on behalf of the Union, any natural or legal person in receipt of payments from the budget, and the national audit bodies or, if these do not have the necessary powers, the competent national departments, shall forward to the Court of Auditors, at its request, any document or information necessary to carry out its task.”

In my view, the provisions of article 287(3) TFEU by no means imply that Union law authorises the Court of Auditors to audit on-the-spot a FP6 contractor or a FP7 beneficiary. Some key reasons are:

- The FP6 contract and the FP7 grant agreement is a private law contract. By definition, they are outside the mainstream of Union law.

- If article 287(3) were to be interpreted as covering indiscriminately anyone who has received payments from the budget, then the Court would be entitled to audit any private-sector landlord of a Commission building, any local bookstore that sold 100-Euro worth stationery to an Agency, even audit the personal finances of every single member of staff of an Institution and the Judges of the Court of Justice. After all, officials do indeed receive payments from the budget. It will be even more interesting to see how a Court’s audit of a senior official of an Institution pursuant to article 287(3) TFEU can be reconciled with diplomatic immunity of those officials.

- If the Ministry of Defence were a party to a FP7 grant agreement, the Court would be entitled to audit its accounts relating to the FP7 action.

Of course, article 287(3) TFEU is not that far wide-ranging. It solely concerns recipients of payments from the budget pursuant to Union law, such as subsidies for agriculture for which there is some kind of universal right to receive a subsidy, provided that all the conditions of Union law are satisfied by the recipient.

It cannot be argued that it applies to private law contracts awarded pursuant to competitive call for tenders and calls for proposals like a FP6 contract or FP7 grant agreement. It is the very competition that ensures the ‘best value for money’ for a tender or an FP7 call for proposals, and essentially renders a financial audit meaningless.

Why such financial audits are in the FP6 contracts and FP7 grant agreements is another matter. Suffice it to say for now, that the FP7 grant agreement has even more bizarre provisions like article FP7.II.13 that deals with personal data rights of legal persons and ‘grants’ a right for recourse to the EDPS to legal persons.

The ultimately logical conclusion of a blanket extension of article 287(3) TFEU to audit on the spot any entity that has received payments from the budget, regardless of the legal basis of the payment, is that the Court is entitled to audit a 50 billion company for a commercial transaction corresponding to an invoice of just 10 Euro to an Institution. It is not sure that the draftsmen of the TFEU had that in mind.

In view of the above considerations, it is evident that there is an overriding public interest for the full release of the documents under requests #13 and #14 above.

Yours faithfully,

Kostas VITSOS

Tribunal de Cuentas Europeo

Dear Kostas Vitsos,

Thank you for your email of 14 July 2013, in which you request the access
to a list of documents set out in your email below.

Under the terms of Decision No 12-2005 of the Court of Auditors regarding
public access to Court documents you will receive a reply within 15
working days, that is by the end of business on 7 August 2013.

Kindest regards,

Aidas Palubinskas

From:        Kostas VITSOS <[FOI #689 email]>
To:        information requests at European Court of Auditors
<[European Court of Auditors request email]>
Date:        17/07/2013 18:38
Subject:        access to information request - FP6 & FP7 programmes,
personal data protection, legal mandate to audit on-the-spot

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

     Dear European Court of Auditors,
   
    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 refer to the manifest personal data processing by the Court in
    on-the-spot audits of FP5 and FP6 contractors and FP7
    beneficiaries.
   
    One example to illustrate the depth and breadth of the personal
    data processing is the Court’s 5-page document entitled ‘Annex I,
    Audit Questionnaire - DAS 2011, Mission on the spot’. The document
    is just a multi-page 5-column table. Parts of page 1 and page 2
    (first and second columns only) read:
   
    *** Page 1 ***
   
    3. Do the amounts in the cost declaration (form C) reconcile to the
    beneficiary’s accounting records?
    4. Verify:
    • if the correct cost reporting model (FP6) or funding rates (FP7)
    have been used and
    • if the beneficiary has an approved COM/COMAV (for FP7 only).
   
    *** Page 2 ***
   
    I) Personnel costs
   
    8
    • Obtain a list of all personnel involved in the indirect research
    actions, indicating period(s) they worked for the project as well
    as their position.
    • Obtain copies of employment contracts for all the relevant
    employees.
    • Obtain list of absence dates (holidays/illnesses) for project
    staff
   
    9. Was the standard personnel practice complied with? (contract
    type, remuneration, subordination,…)
    If not, is it acceptable?
   
    10. Is the time recording in accordance with the Commission’s
    requirements (e.g. time sheets)?
   
    11. Can you confirm that project staff did not record any time on
    the project during holidays or illness periods?
   
    12. Is the calculation of hourly labour costs correct?
   
    13. Is the calculation of productive hours correct?
   
    It is striking that question no 10 is about the Commission’s
    requirements about time-recording, that is to say one of the two
    contracting parties, and with no reference to the Union law or
    contractual provisions. It is not immediately obvious that such an
    attitude is fully in line with verifying the legality of
    transactions.
   
    *******************
   
    Copies of the following documents drawn up by the Courts are kindly
    requested:
   
    1. The internal documents drawn up prior to 31/12/2012 setting out
    a legal analysis about the lawfulness of the Court’s personal data
    processing of third parties to the FP5-FP6-FP7 audited contracts
    (i.e. the persons the contractor-beneficiary charged to the audited
    projects), except those drawn up by the Data Protection Officer.
   
    2. The documents drawn up by the Data Protection Officer prior to
    31/12/2012 setting out a legal analysis about the lawfulness of the
    Court’s personal data processing of third parties to the
    FP5-FP6-FP7 audited contracts (i.e. the persons the
    contractor-beneficiary charged to the audited projects).
   
    3. The article 25 of Regulation 45/2001 prior notification in force
    in 2009 covering the Court’s personal data processing of third
    parties to the audited FP5, FP6 and FP7 contracts, that is to say
    the persons the contractor-beneficiary charged to the audited
    projects.
   
    4. The article 25 of Regulation 45/2001 prior notification in force
    in 2010 covering the Court’s personal data processing of third
    parties to the audited FP5, FP6 and FP7 contracts, that is to say
    the persons the contractor-beneficiary charged to the audited
    projects.
   
    5. The article 25 of Regulation 45/2001 prior notification in force
    in 2011 covering the Court’s personal data processing of third
    parties to the audited FP5, FP6 and FP7 contracts, that is to say
    the persons the contractor-beneficiary charged to the audited
    projects.
   
    6. The article 25 of Regulation 45/2001 prior notification in force
    in 2012 covering the Court’s personal data processing of third
    parties to the audited FP5, FP6 and FP7 contracts, that is to say
    the persons the contractor-beneficiary charged to the audited
    projects.
   
    7. A sample of 10 documents drawn up in 2009 pursuant to article
    12(1) of Regulation 45/2001 regarding the manifest personal data
    processing by the Court of third parties to the audited FP5, FP6
    and FP7 contracts, that is to say the persons the
    contractor-beneficiary charged to the audited projects.
   
    8. A sample of 10 documents drawn up in 2010 pursuant to article
    12(1) of Regulation 45/2001 regarding the manifest personal data
    processing by the Court of third parties to the audited FP5, FP6
    and FP7 contracts, that is to say the persons the
    contractor-beneficiary charged to the audited projects.
   
    9. A sample of 10 documents drawn up in 2011 pursuant to article
    12(1) of Regulation 45/2001 regarding the manifest personal data
    processing by the Court of third parties to the audited FP5, FP6
    and FP7 contracts, that is to say the persons the
    contractor-beneficiary charged to the audited projects.
   
    10. A sample of 10 documents drawn up in 2012 pursuant to article
    12(1) of Regulation 45/2001 regarding the manifest personal data
    processing by the Court of third parties audited FP5, FP6 and FP7
    contracts, that is to say the persons the contractor-beneficiary
    charged to the audited projects.
   
    11. In view of employment contracts most definitely containing
    information covered by the professional secrecy obligations of
    article 339 TFEU (even arguably business secrets), the document(s)
    setting out an analysis of how the Court’s manifest processing of
    such information - in particular in view of the circumstances of
    the processing (e.g. keeping completely in the dark the third
    parties to the audited projects about it) -, has been compliant
    with the EU Courts case law, in particular the Cases 53/85 Akzo,
    T-353/94 Postbank, T-198/03 Bank Austria Creditanstalt (§29-34,
    §71-74).
   
    12. The documents setting out an analysis of the lawfulness of the
    Court’s processing of personal data originating from the Research
    family DGs. In this context, it is pointed out that the Research
    family DGs have breached numerous provisions of Union and national
    law on personal data protection, with the crown of the illegalities
    being the two false statements in DG ENTR DPO-3334.1, DG INFSO
    DPO-3338.1, DG RTD DPO-3398.1 (summer 2012),and DG MOVE-ENER
    DPO-3420.1 ‘This processing has been submitted to the EDPS who
    concluded that Article 27 is not applicable’ and ‘3.
    Sub-Contractors —’.
   
    13. The documents setting out an analysis of the lawfulness of the
    Courts on-the-spot audits of FP5-FP6-FP7 contractors with its own
    staff and at the premises of the contractors, in particular what
    provisions of Union law authorising the Court to do so. Some
    considerations about it are given further below.
   
    14. Regarding any ten (10) on-the-spot audits of FP5-FP6-FP7
    contractors by the Court in the period 2009-2012, the documents
    with which the Court notified the relevant national audit body
    pursuant to article 287(3) TFEU ‘In the Member States the audit
    shall be carried out in liaison with national audit bodies or, if
    these do not have the necessary powers, with the competent national
    departments’. In identifying those 10 audits, the applicant’s
    kindly requests that the Court select the 10 audits on the basis of
    the language of the correspondence, which is in decreasing order:
    (1) English, (2) Greek, (3) French, (4) Italian, (5) Spanish.
   
    **************************
   
    OVERRIDING PUBLIC INTEREST
   
    1. Fundamental right of personal data protection
   
    To appreciate the seriousness of the matters and the public’s great
    interest, the Court’s staff may find useful to read the legal
    analysis in a very recent application pursuant to Regulation No
    1049/2001 (Gestdem 2013/3761) at the asktheeu.org,
   
[1]http://www.asktheeu.org/en/request/dg_in....
   
    Requests #1 to #12 concern the fundamental right of personal data
    protection. Full release is necessary, except the personal data in
    the documents of requests #7 to #10.
   
    2. Court’s mandate to audit on-the-spot and at their premises FP6
    contractors and FP7 beneficiaries
   
    The following paragraphs outline the applicant’s doubts about to
    what extent the Court is duly authorised to audit FP6 contractors
    and FP7 beneficiaries on-the-spot and in a Member State.
   
    As a preliminary observation, the Court is neither a Court of Law
    nor a Tribunal and therefore it is not covered by the principle of
    sincere cooperation between the Judicial Authorities of the Union
    and those of the Member States. Principles like the unfettered
    evaluation of evidence lawfully produced before a Court of Law do
    not apply to the Court of Auditors.
   
    Article 142 of Regulation No 1605/2002, as amended (in force until
    31/12/2012), concerns on-the-spot audits at the premises of an
    Institution and not in the premises of a contractor-beneficiary.
   
    Article 18(4) of Regulation No 2324/2002 FP6 Rules of Participation
    reads:
    “4. Pursuant to Article 248(2) of the Treaty, the Court of Auditors
    may verify the use of the Community's financial contribution”
   
    In my view, this provision does not expressly authorise the Court
    to audit a FP6 contractor in a Member State. Furthermore, a
    ‘verification of the use’ is not necessarily a financial audit per
    se.
   
    Article 19(10) of Regulation No 1605/2006 FP7 Rules of
    Participation reads:
    “10. The model grant agreement shall provide for supervision and
    financial control by the Commission or any representative
    authorised by it, and the Court of Auditors.”
   
    This provision merely mandates the insertion into the grant
    agreement of a contractual right of the Court of Auditors for
    ‘financial control’. It does not expressly state that the
    ‘financial control’ will take place at the beneficiary’s premises.
    In addition, the Court will carry out the ‘financial control’
    pursuant to a provision of a private law contract (FP7.II.22) and
    not pursuant to Union. There are fundamental legal differences
    between a contractual ‘financial control’ and a ‘financial control’
    pursuant to Union law.
   
    As the EU Courts have always held, any intervention in a Member
    State by an Institution into to the private affairs of private law
    legal person needs to have a clear and unambiguous mandate in Union
    law. Article 7 of Regulation No 2185/96 and article 20 of
    Regulation No 1/2003 are two examples of Union law expressly
    authorising the Commission to carry out on-the-spot inspections.
    Union law expressly provides that the economic operators are
    required to submit to those inspections. The former provides for
    the assistance of the competent national authorities to the
    Commission inspectors in case of non-submission by the economic
    operator. The latter provides inter alia for the imposition of
    severe administrative fines in case of non-submission. In other
    words, when the EU legislature intended to confer on an Institution
    to power to intervene in the private affairs of an economic
    operator for the public interest, not only did it expressly state
    it in the legislative act, but it also included provisions for
    dealing with cases of non-submission or non-compliance. There is
    absolutely nothing of this kind of clarity for the Court’s
    on-the-spot audits of FP6 contractors and FP7 beneficiaries.
   
    We will now examine the provisions of article 287(3) TFEU that
    indeed provides for on-the-spot audits:
   
    “The audit shall be based on records and, if necessary, performed
    on the spot in the other institutions of the Union, on the premises
    of any body, office or agency which manages revenue or expenditure
    on behalf of the Union and in the Member States, including on the
    premises of any natural or legal person in receipt of payments from
    the budget. In the Member States the audit shall be carried out in
    liaison with national audit bodies or, if these do not have the
    necessary powers, with the competent national departments. The
    Court of Auditors and the national audit bodies of the Member
    States shall cooperate in a spirit of trust while maintaining their
    independence. These bodies or departments shall inform the Court of
    Auditors whether they intend to take part in the audit.
   
    The other institutions of the Union, any bodies, offices or
    agencies managing revenue or expenditure on behalf of the Union,
    any natural or legal person in receipt of payments from the budget,
    and the national audit bodies or, if these do not have the
    necessary powers, the competent national departments, shall forward
    to the Court of Auditors, at its request, any document or
    information necessary to carry out its task.”
   
    In my view, the provisions of article 287(3) TFEU by no means imply
    that Union law authorises the Court of Auditors to audit
    on-the-spot a FP6 contractor or a FP7 beneficiary. Some key reasons
    are:
   
    - The FP6 contract and the FP7 grant agreement is a private law
    contract. By definition, they are outside the mainstream of Union
    law.
   
    - If article 287(3) were to be interpreted as covering
    indiscriminately anyone who has received payments from the budget,
    then the Court would be entitled to audit any private-sector
    landlord of a Commission building, any local bookstore that sold
    100-Euro worth stationery to an Agency, even audit the personal
    finances of every single member of staff of an Institution and the
    Judges of the Court of Justice. After all, officials do indeed
    receive payments from the budget. It will be even more interesting
    to see how a Court’s audit of a senior official of an Institution
    pursuant to article 287(3) TFEU can be reconciled with diplomatic
    immunity of those officials.
   
    - If the Ministry of Defence were a party to a FP7 grant agreement,
    the Court would be entitled to audit its accounts relating to the
    FP7 action.
   
    Of course, article 287(3) TFEU is not that far wide-ranging. It
    solely concerns recipients of payments from the budget pursuant to
    Union law, such as subsidies for agriculture for which there is
    some kind of universal right to receive a subsidy, provided that
    all the conditions of Union law are satisfied by the recipient.
   
    It cannot be argued that it applies to private law contracts
    awarded pursuant to competitive call for tenders and calls for
    proposals like a FP6 contract or FP7 grant agreement. It is the
    very competition that ensures the ‘best value for money’ for a
    tender or an FP7 call for proposals, and essentially renders a
    financial audit meaningless.
   
    Why such financial audits are in the FP6 contracts and FP7 grant
    agreements is another matter. Suffice it to say for now, that the
    FP7 grant agreement has even more bizarre provisions like article
    FP7.II.13 that deals with personal data rights of legal persons and
    ‘grants’ a right for recourse to the EDPS to legal persons.
   
    The ultimately logical conclusion of a blanket extension of article
    287(3) TFEU to audit on the spot any entity that has received
    payments from the budget, regardless of the legal basis of the
    payment, is that the Court is entitled to audit a 50 billion
    company for a commercial transaction corresponding to an invoice of
    just 10 Euro to an Institution. It is not sure that the draftsmen
    of the TFEU had that in mind.
   
    In view of the above considerations, it is evident that there is an
    overriding public interest for the full release of the documents
    under requests #13 and #14 above.
   
    Yours faithfully,
   
    Kostas VITSOS
   
    -------------------------------------------------------------------
   
    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: [FOI #689 email]
   
    If [European Court of Auditors request email] is the wrong address for information
    requests to European Court of Auditors, please tell the
    AsktheEU.org team on email [email address]
   
    This message and all replies from European Court of Auditors will
    be published on the AsktheEU.org website. For more information see
    our dedicated page for EU public officials at
    [2]http://www.asktheeu.org/en/help/officers
   
   
   
    -------------------------------------------------------------------

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Tribunal de Cuentas Europeo

Dear Kostas Vitsos,

We would like to inform you that pursuant to Article 6(3) and (4) of
Decision 12-2005 of the Court of Auditors regarding public access to Court
documents, and due to the vacation period, the initial deadline of 15
working days (ending on 7 August 2013) must be exceptionally extended for
another 15 working days.

You will receive a reply by the end of the business day on Thursday 29
August 2013.

Kind regards,
ECA Info

From:        Kostas VITSOS <[FOI #689 email]>
To:        information requests at European Court of Auditors
<[European Court of Auditors request email]>
Date:        17/07/2013 18:38
Subject:        access to information request - FP6 & FP7 programmes,
personal data protection, legal mandate to audit on-the-spot

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

     Dear European Court of Auditors,
   
    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 refer to the manifest personal data processing by the Court in
    on-the-spot audits of FP5 and FP6 contractors and FP7
    beneficiaries.
   
    One example to illustrate the depth and breadth of the personal
    data processing is the Court’s 5-page document entitled ‘Annex I,
    Audit Questionnaire - DAS 2011, Mission on the spot’. The document
    is just a multi-page 5-column table. Parts of page 1 and page 2
    (first and second columns only) read:
   
    *** Page 1 ***
   
    3. Do the amounts in the cost declaration (form C) reconcile to the
    beneficiary’s accounting records?
    4. Verify:
    • if the correct cost reporting model (FP6) or funding rates (FP7)
    have been used and
    • if the beneficiary has an approved COM/COMAV (for FP7 only).
   
    *** Page 2 ***
   
    I) Personnel costs
   
    8
    • Obtain a list of all personnel involved in the indirect research
    actions, indicating period(s) they worked for the project as well
    as their position.
    • Obtain copies of employment contracts for all the relevant
    employees.
    • Obtain list of absence dates (holidays/illnesses) for project
    staff
   
    9. Was the standard personnel practice complied with? (contract
    type, remuneration, subordination,…)
    If not, is it acceptable?
   
    10. Is the time recording in accordance with the Commission’s
    requirements (e.g. time sheets)?
   
    11. Can you confirm that project staff did not record any time on
    the project during holidays or illness periods?
   
    12. Is the calculation of hourly labour costs correct?
   
    13. Is the calculation of productive hours correct?
   
    It is striking that question no 10 is about the Commission’s
    requirements about time-recording, that is to say one of the two
    contracting parties, and with no reference to the Union law or
    contractual provisions. It is not immediately obvious that such an
    attitude is fully in line with verifying the legality of
    transactions.
   
    *******************
   
    Copies of the following documents drawn up by the Courts are kindly
    requested:
   
    1. The internal documents drawn up prior to 31/12/2012 setting out
    a legal analysis about the lawfulness of the Court’s personal data
    processing of third parties to the FP5-FP6-FP7 audited contracts
    (i.e. the persons the contractor-beneficiary charged to the audited
    projects), except those drawn up by the Data Protection Officer.
   
    2. The documents drawn up by the Data Protection Officer prior to
    31/12/2012 setting out a legal analysis about the lawfulness of the
    Court’s personal data processing of third parties to the
    FP5-FP6-FP7 audited contracts (i.e. the persons the
    contractor-beneficiary charged to the audited projects).
   
    3. The article 25 of Regulation 45/2001 prior notification in force
    in 2009 covering the Court’s personal data processing of third
    parties to the audited FP5, FP6 and FP7 contracts, that is to say
    the persons the contractor-beneficiary charged to the audited
    projects.
   
    4. The article 25 of Regulation 45/2001 prior notification in force
    in 2010 covering the Court’s personal data processing of third
    parties to the audited FP5, FP6 and FP7 contracts, that is to say
    the persons the contractor-beneficiary charged to the audited
    projects.
   
    5. The article 25 of Regulation 45/2001 prior notification in force
    in 2011 covering the Court’s personal data processing of third
    parties to the audited FP5, FP6 and FP7 contracts, that is to say
    the persons the contractor-beneficiary charged to the audited
    projects.
   
    6. The article 25 of Regulation 45/2001 prior notification in force
    in 2012 covering the Court’s personal data processing of third
    parties to the audited FP5, FP6 and FP7 contracts, that is to say
    the persons the contractor-beneficiary charged to the audited
    projects.
   
    7. A sample of 10 documents drawn up in 2009 pursuant to article
    12(1) of Regulation 45/2001 regarding the manifest personal data
    processing by the Court of third parties to the audited FP5, FP6
    and FP7 contracts, that is to say the persons the
    contractor-beneficiary charged to the audited projects.
   
    8. A sample of 10 documents drawn up in 2010 pursuant to article
    12(1) of Regulation 45/2001 regarding the manifest personal data
    processing by the Court of third parties to the audited FP5, FP6
    and FP7 contracts, that is to say the persons the
    contractor-beneficiary charged to the audited projects.
   
    9. A sample of 10 documents drawn up in 2011 pursuant to article
    12(1) of Regulation 45/2001 regarding the manifest personal data
    processing by the Court of third parties to the audited FP5, FP6
    and FP7 contracts, that is to say the persons the
    contractor-beneficiary charged to the audited projects.
   
    10. A sample of 10 documents drawn up in 2012 pursuant to article
    12(1) of Regulation 45/2001 regarding the manifest personal data
    processing by the Court of third parties audited FP5, FP6 and FP7
    contracts, that is to say the persons the contractor-beneficiary
    charged to the audited projects.
   
    11. In view of employment contracts most definitely containing
    information covered by the professional secrecy obligations of
    article 339 TFEU (even arguably business secrets), the document(s)
    setting out an analysis of how the Court’s manifest processing of
    such information - in particular in view of the circumstances of
    the processing (e.g. keeping completely in the dark the third
    parties to the audited projects about it) -, has been compliant
    with the EU Courts case law, in particular the Cases 53/85 Akzo,
    T-353/94 Postbank, T-198/03 Bank Austria Creditanstalt (§29-34,
    §71-74).
   
    12. The documents setting out an analysis of the lawfulness of the
    Court’s processing of personal data originating from the Research
    family DGs. In this context, it is pointed out that the Research
    family DGs have breached numerous provisions of Union and national
    law on personal data protection, with the crown of the illegalities
    being the two false statements in DG ENTR DPO-3334.1, DG INFSO
    DPO-3338.1, DG RTD DPO-3398.1 (summer 2012),and DG MOVE-ENER
    DPO-3420.1 ‘This processing has been submitted to the EDPS who
    concluded that Article 27 is not applicable’ and ‘3.
    Sub-Contractors —’.
   
    13. The documents setting out an analysis of the lawfulness of the
    Courts on-the-spot audits of FP5-FP6-FP7 contractors with its own
    staff and at the premises of the contractors, in particular what
    provisions of Union law authorising the Court to do so. Some
    considerations about it are given further below.
   
    14. Regarding any ten (10) on-the-spot audits of FP5-FP6-FP7
    contractors by the Court in the period 2009-2012, the documents
    with which the Court notified the relevant national audit body
    pursuant to article 287(3) TFEU ‘In the Member States the audit
    shall be carried out in liaison with national audit bodies or, if
    these do not have the necessary powers, with the competent national
    departments’. In identifying those 10 audits, the applicant’s
    kindly requests that the Court select the 10 audits on the basis of
    the language of the correspondence, which is in decreasing order:
    (1) English, (2) Greek, (3) French, (4) Italian, (5) Spanish.
   
    **************************
   
    OVERRIDING PUBLIC INTEREST
   
    1. Fundamental right of personal data protection
   
    To appreciate the seriousness of the matters and the public’s great
    interest, the Court’s staff may find useful to read the legal
    analysis in a very recent application pursuant to Regulation No
    1049/2001 (Gestdem 2013/3761) at the asktheeu.org,
   
[1]http://www.asktheeu.org/en/request/dg_in....
   
    Requests #1 to #12 concern the fundamental right of personal data
    protection. Full release is necessary, except the personal data in
    the documents of requests #7 to #10.
   
    2. Court’s mandate to audit on-the-spot and at their premises FP6
    contractors and FP7 beneficiaries
   
    The following paragraphs outline the applicant’s doubts about to
    what extent the Court is duly authorised to audit FP6 contractors
    and FP7 beneficiaries on-the-spot and in a Member State.
   
    As a preliminary observation, the Court is neither a Court of Law
    nor a Tribunal and therefore it is not covered by the principle of
    sincere cooperation between the Judicial Authorities of the Union
    and those of the Member States. Principles like the unfettered
    evaluation of evidence lawfully produced before a Court of Law do
    not apply to the Court of Auditors.
   
    Article 142 of Regulation No 1605/2002, as amended (in force until
    31/12/2012), concerns on-the-spot audits at the premises of an
    Institution and not in the premises of a contractor-beneficiary.
   
    Article 18(4) of Regulation No 2324/2002 FP6 Rules of Participation
    reads:
    “4. Pursuant to Article 248(2) of the Treaty, the Court of Auditors
    may verify the use of the Community's financial contribution”
   
    In my view, this provision does not expressly authorise the Court
    to audit a FP6 contractor in a Member State. Furthermore, a
    ‘verification of the use’ is not necessarily a financial audit per
    se.
   
    Article 19(10) of Regulation No 1605/2006 FP7 Rules of
    Participation reads:
    “10. The model grant agreement shall provide for supervision and
    financial control by the Commission or any representative
    authorised by it, and the Court of Auditors.”
   
    This provision merely mandates the insertion into the grant
    agreement of a contractual right of the Court of Auditors for
    ‘financial control’. It does not expressly state that the
    ‘financial control’ will take place at the beneficiary’s premises.
    In addition, the Court will carry out the ‘financial control’
    pursuant to a provision of a private law contract (FP7.II.22) and
    not pursuant to Union. There are fundamental legal differences
    between a contractual ‘financial control’ and a ‘financial control’
    pursuant to Union law.
   
    As the EU Courts have always held, any intervention in a Member
    State by an Institution into to the private affairs of private law
    legal person needs to have a clear and unambiguous mandate in Union
    law. Article 7 of Regulation No 2185/96 and article 20 of
    Regulation No 1/2003 are two examples of Union law expressly
    authorising the Commission to carry out on-the-spot inspections.
    Union law expressly provides that the economic operators are
    required to submit to those inspections. The former provides for
    the assistance of the competent national authorities to the
    Commission inspectors in case of non-submission by the economic
    operator. The latter provides inter alia for the imposition of
    severe administrative fines in case of non-submission. In other
    words, when the EU legislature intended to confer on an Institution
    to power to intervene in the private affairs of an economic
    operator for the public interest, not only did it expressly state
    it in the legislative act, but it also included provisions for
    dealing with cases of non-submission or non-compliance. There is
    absolutely nothing of this kind of clarity for the Court’s
    on-the-spot audits of FP6 contractors and FP7 beneficiaries.
   
    We will now examine the provisions of article 287(3) TFEU that
    indeed provides for on-the-spot audits:
   
    “The audit shall be based on records and, if necessary, performed
    on the spot in the other institutions of the Union, on the premises
    of any body, office or agency which manages revenue or expenditure
    on behalf of the Union and in the Member States, including on the
    premises of any natural or legal person in receipt of payments from
    the budget. In the Member States the audit shall be carried out in
    liaison with national audit bodies or, if these do not have the
    necessary powers, with the competent national departments. The
    Court of Auditors and the national audit bodies of the Member
    States shall cooperate in a spirit of trust while maintaining their
    independence. These bodies or departments shall inform the Court of
    Auditors whether they intend to take part in the audit.
   
    The other institutions of the Union, any bodies, offices or
    agencies managing revenue or expenditure on behalf of the Union,
    any natural or legal person in receipt of payments from the budget,
    and the national audit bodies or, if these do not have the
    necessary powers, the competent national departments, shall forward
    to the Court of Auditors, at its request, any document or
    information necessary to carry out its task.”
   
    In my view, the provisions of article 287(3) TFEU by no means imply
    that Union law authorises the Court of Auditors to audit
    on-the-spot a FP6 contractor or a FP7 beneficiary. Some key reasons
    are:
   
    - The FP6 contract and the FP7 grant agreement is a private law
    contract. By definition, they are outside the mainstream of Union
    law.
   
    - If article 287(3) were to be interpreted as covering
    indiscriminately anyone who has received payments from the budget,
    then the Court would be entitled to audit any private-sector
    landlord of a Commission building, any local bookstore that sold
    100-Euro worth stationery to an Agency, even audit the personal
    finances of every single member of staff of an Institution and the
    Judges of the Court of Justice. After all, officials do indeed
    receive payments from the budget. It will be even more interesting
    to see how a Court’s audit of a senior official of an Institution
    pursuant to article 287(3) TFEU can be reconciled with diplomatic
    immunity of those officials.
   
    - If the Ministry of Defence were a party to a FP7 grant agreement,
    the Court would be entitled to audit its accounts relating to the
    FP7 action.
   
    Of course, article 287(3) TFEU is not that far wide-ranging. It
    solely concerns recipients of payments from the budget pursuant to
    Union law, such as subsidies for agriculture for which there is
    some kind of universal right to receive a subsidy, provided that
    all the conditions of Union law are satisfied by the recipient.
   
    It cannot be argued that it applies to private law contracts
    awarded pursuant to competitive call for tenders and calls for
    proposals like a FP6 contract or FP7 grant agreement. It is the
    very competition that ensures the ‘best value for money’ for a
    tender or an FP7 call for proposals, and essentially renders a
    financial audit meaningless.
   
    Why such financial audits are in the FP6 contracts and FP7 grant
    agreements is another matter. Suffice it to say for now, that the
    FP7 grant agreement has even more bizarre provisions like article
    FP7.II.13 that deals with personal data rights of legal persons and
    ‘grants’ a right for recourse to the EDPS to legal persons.
   
    The ultimately logical conclusion of a blanket extension of article
    287(3) TFEU to audit on the spot any entity that has received
    payments from the budget, regardless of the legal basis of the
    payment, is that the Court is entitled to audit a 50 billion
    company for a commercial transaction corresponding to an invoice of
    just 10 Euro to an Institution. It is not sure that the draftsmen
    of the TFEU had that in mind.
   
    In view of the above considerations, it is evident that there is an
    overriding public interest for the full release of the documents
    under requests #13 and #14 above.
   
    Yours faithfully,
   
    Kostas VITSOS
   
    -------------------------------------------------------------------
   
    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: [FOI #689 email]
   
    If [European Court of Auditors request email] is the wrong address for information
    requests to European Court of Auditors, please tell the
    AsktheEU.org team on email [email address]
   
    This message and all replies from European Court of Auditors will
    be published on the AsktheEU.org website. For more information see
    our dedicated page for EU public officials at
    [2]http://www.asktheeu.org/en/help/officers
   
   
   
    -------------------------------------------------------------------

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Dear European Court of Auditors,

Referring to the Cort's email dated 2/8/2013, which set the 29th of August as the target date for providing an initial reply, this is to make enquiries about the status of the initial reply.

The applicant has been fully aware of the utmost seriousness of the matters underlying this request for documents, namely the Court's compliance with Regulation No 45/2001 and several other provisions of Union law with regards to the Court's audits of the FP5, FP6 and FP7 research programmes.

The very recent DG RTD reply to an application pursuant to Regulation No 1049/2001 GestDem 3351/2013 - publicly available at http://www.asktheeu.org/en/request/587/r... - proves that as far the external financial audits of DG RTD are concerned, these audits are marred by a host of breaches of Regulation No 45/2001. The DG RTD prior notification of article 25 of Regulation No 45/2001 DPO-3398.1, DPO-3398.2 and DPO-3398.3 contain one or two false declarations and, apparently, all versions of DPO-3398 have non-existing legal basis (this is a direct consequence of the DG RTD initial reply to request #7 of GestDem 3351/2013).

Since DG RTD - in fact all Research family DGs - has gravely infringed Regulation No 45/2001 in every single external financial audit, in so far the Court itself has relied on personal data DG RTD placed at its disposal for its own audits of the Commission's accounts, a big question looms about the extent to which the Court has been compliant with Regulation No 45/2001.

The full release of the documents of the present application will enable the applicant, as well as the public, to form a view about the legality with regards to Regulation No 45/2001 of the Court's audits of the Research family DGs accounts .

In view of the above, I would be obliged if the Court would inform me about the status of the initial reply.

Yours faithfully,

Kostas VITSOS

Dear European Court of Auditors,

Referring to my email of 16/9/2013, to which the Court has not replied, this is to register the applicant's protest for the wholly unacceptable excessive delay of the Court to provide me with the initial reply.

The subject matter of the application is the release of the Court's documents, which will enable the scrutiny of the Court's compliance with Regulation No 45/2001, that is to say the fundamental right of personal data protection.

As regards the present application, there is another far more serious aspect of the Court's conduct with respect to its Annual Reports and the research programmes FP6 and FP7. The Court had strongly criticised the Research family DGs of the European Commission (henceforth 'the Research DGs') in that non-compliance with the financial rules of the FP6 contractors were in the order of 5%. In response to such criticism, in 2007 the Research DGs launched an intensive financial audit campaign to clear 50% of the total FP6 and FP7 subsidies.

It is now public in asktheeu.org that the prior notifications of article 25 of Regulation No 45/2001 DG INFSO DPO-3338, DG ENTR DPO-3334, DG RTD DPO-3398 and DG MOVE DPO-3420 have two false statements and also completely lack a legal basis. The definition of data controller in article 1 second indent of the Commission Decision 597/2008 has made the four senior official designated as data controllers in these four prior notifications personally liable for the deceitful nature of the prior notifications and the two false statements. False statements in official documents expressly provided for in the statute is a criminal offence in some Member States.

In view of labour costs being over 70% of all claimed costs of a typical FP6 - FP7 project, it is self-evident that insofar the Court based its conclusion about the 'correctness' of the FP6 claims on the audit files of the Research DGs, with the audit files resulting from external financial audits of the Research DGs, the Court was using personal data unlawfully in the possession of the Research DGs. In case an audit report of an external financial audit were to be lodged as evidence in litigation before the General Court, the report would be inadmissible evidence insofar it contains personal data. That poor FP6 contractors and FP7 beneficiaries have not so far made such pleas in law before the General Court in no surprise. The Research DGs have been hugely successful in deceiving everybody. Who would have thought that the Research DGs would post in the Europa website, in plain public view, prior notifications (statutory official documents) with false statements. Now all this deceitful and utterly deplorable contact of the Research DGs has been exposed. Sooner or later the General Court will rule, as a matter of public policy, about the illegal personal data processing by the Research DGs. It is certain that the General Court will take an extremely dim view of the deceitful prior notifications and false declarations.

The Court has itself a lot of explaining to do about its own compliance with Regulation No 45/2001 regarding its audit findings for FP6 & FP7, and how on earth the Court was using gravely illegal audit evidence (the personal data either itself or the Research DGs collected in contravention of both Regulation No 45/2001 and the national personal data protection legislation). The Court's reliance on unlawful audit evidence is somewhat similar to auditing the annual accounts of a company and replying extensively on evidence the auditor obtained for the auditee in contravention of national laws, even criminal offences (in some Member States unlawful personal data processing for a financial gain is an offence).

There is also a huge question how the Court failed so miserably to spot the huge difference between articles FP6.II.29 and FP7.II.22 (all audit of the Research DGs are conducted pursuant to those contractual terms) and the statutory audits of the annual accounts of companies. In the latter audits the qualified auditor expresses an opinion that is of value and significance to the company's shareholders and the authorities. The FP6 & FP7 contractual audits are nothing more than a contractual measure in a private law contract.

Moreover, all the Court's observations and remarks about the applicability of the International Standards on Auditing to FP6 and FP7 audits are entirely meaningless, since such standards apply to statutory audits, conducted by professionals whose qualifications and responsibilities are governed by statutory provisions. The signatory of the DG INFSO external financial audit reports is not even a qualified accountant. While the Court has been fully aware of the legal conditions under which a professional auditor can rely on the work of other professional auditors, the Court has miserably failed to spot that the vast majority of the officials of the Reserach DGs who have conducted the external financial audits (and also supervised and approved the work of the external contractors-auditors) are not qualified auditors or accountants.

The Court may choose to disregard its legal obligations to release the requested documents. The underlying matters may end up in litigation before the General Court, in which case the Court will not be able to disregard the General Court, as it apparently has done so far for mere citizens like the applicant.

Nevertheless, if the Court would disregard its obligations for transparency, the public opinion will draw its own conclusions. After all, the Court must have the integrity to observe legality by subjecting itself to transparency. Illegally refusing to release the requested documents might temporarily save the Court from releasing further evidence of its unlawful conduct, but it further compromises the Court's integrity and observance of legality. In my view, the honorable course of action is to admit the past 'mistakes' and put the house in order. Hiding the past illegal actions, which are now self-evident, is senseless.

In view of the above, the Court's attention is brought to its unquestionable and absolute legal obligation to timely provide the applicant with an initial reply.

Yours faithfully,

Kostas VITSOS

Dear European Court of Auditors,

The undersigned-applicant hereby protests about the disregard by the administrative department(s) of the Court of his reminders about the application pursuant to the Court’s Decision 12/2005.

The Court registered the application on 24 of June, that is to say nearly five months ago. On 2 August the Court extended the time-limit of providing the initial response to the 29 August. The applicant made two enquiries about the initial response on 16 September and 11 October, which have apparently fallen on deaf ears.

The application aims at releasing documents drawn up by the Court, with which the applicant, and presumably the public, will scrutinise the Court’s audits of the Research family DGs against their compliance with Regulation 45/2001.

The application has to be seen in the context of the grave infringements of Regulation 45/2001 and the national laws transposing Directive 95/46/EC by the Research family DGs in every single external financial audit. The applicant is nearly certain that the Court has deliberately disregarded its own legal obligations as regards Regulation 45/2001. Put differently, the Court’s audit methods and practices were infringing Regulation 45/2001 in so far the audits of the Research family DGs are concerned.

The Court is referred to the confirmatory application pursuant to Regulation 1049/2001, GestDem 2013/3912 of 14 November, section "3. Substance of the application - overriding public interest", http://www.asktheeu.org/en/request/fp6_f.... The arguments advanced by that applicant illustrate the extent to which DG RTD and DG INFSO had a concealed policy of disregarding Regulation 45/2001 and the national legislation transposing the provisions of Directive 95/46/EC.

It is worth quoting that applicant about the practices of the Commission services in their efforts to escape public scrutiny:

“An all-time low was reached when with the Commission services caused the President of the Commission to misrepresent elementary facts to the Ombudsman, Ares(2013)2952891 - 30/08/2013, http://www.asktheeu.org/en/request/583/r...
in their attempt to prevent the release of information about the DG INFSO risk-based audits.”

Seen under the light of the preceding paragraphs the Court’s implied refusal to provide an initial response cannot be accepted.

Taking inspiration from another applicant, http://www.asktheeu.org/en/request/fp6_f..., the Court’s attention is drawn to the following:

An applicant cannot compel the Court’s administrative department(s) to provide an initial response an application pursuant to Decision 12/2005. However, an applicant can bring the attention of the Supreme Audit Institutions of the 27 Member States, the supervising authorities of Directive 95/46/EC, and of Members of the European Parliament to the present application, emphasizing the underlying doubts about the Court’s compliance with Regulation 45/2001 in so far the Court’s audits of the Research family DGs are concerned. Perhaps such an 'escalation' might persuade the Court’s administrative department(s) to provide even a rudimentary initial response to the present application.

Having regard to the above points, in the event the Court’s administrative department(s) does not provide an initial response within a week, the applicant will write to the President of the Court – notifying the third parties of the preceding paragraphs– requesting his kind intervention, such that the Court's administrative departments respect Decision 12/2005 and provide an initial response.

Yours faithfully,

Kostas VITSOS

Tribunal de Cuentas Europeo

Dear Mr. Vitsos,

Our sincere apologies for not having answered on time.  It seems that your
mails, rather than appearing in the inbox were being bounced into a folder
where they were not immediately visible.

Regarding your requests:

1 and 2 --   We confirm that there are no such documents as the DPO judged
that the personal data treated during audits of FP5,FP6 & FP7 contracts
are based on the article 287 of the Treaty of the EU which specifies that
the ECA has full access to all evidence of spending of the EU budget,
including personal data;

3 through 6 --  We already provided you with the DPO notification AUD-160
 by e-mail on 15/07/2013, and we confirm the other documents do not exist,
as it is the Commission, who collects the personal data from the
beneficiaries of subventions who in their turn need to inform
subcontractors that their personal data may be treated by the ECA for
audit purposes.

7 through 10 -- We confirm that your request is insufficiently precise to
identify a specific document.  Under Article 9.4  of the Court's decision
regarding public access to documents provides that the Court is not
obliged to compile information on the request of an applicant.

11 through 13 -- We confirm that no such documents exist.

14 -- see 7 through 13.

On behalf of the President of the European Court of Auditors,

Aidas Palubinskas

From:        Kostas VITSOS <[FOI #689 email]>
To:        [European Court of Auditors request email]
Date:        15/11/2013 17:05
Subject:        Re: access to information request - FP6 & FP7 programmes,
personal data protection, legal mandate to audit on-the-spot

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Dear European Court of Auditors,

The undersigned-applicant hereby protests about the disregard by the
administrative department(s) of the Court of his reminders about the
application pursuant to the Court’s Decision 12/2005.

The Court registered the application on 24 of  June, that is to say nearly
five months ago. On 2  August the Court extended the time-limit of
providing the initial response to the 29  August. The applicant made two
enquiries about the initial response on 16 September and 11 October, which
have apparently fallen on deaf ears.

The application aims at releasing documents drawn up by the Court, with
which the applicant, and presumably the public, will scrutinise the
Court’s audits of the Research family DGs against their compliance with
Regulation 45/2001.

The application has to be seen in the context of the grave infringements
of Regulation 45/2001 and the national laws transposing Directive 95/46/EC
by the Research family DGs in every single external financial audit. The
applicant is nearly certain that the Court has deliberately disregarded
its own legal obligations as regards Regulation 45/2001. Put differently,
the Court’s audit methods and practices were infringing Regulation 45/2001
in so far the audits of the Research family DGs are concerned.

The Court is referred to the confirmatory application pursuant to
Regulation 1049/2001, GestDem 2013/3912 of 14 November, section "3.
Substance of the application - overriding public interest",
[1]http://www.asktheeu.org/en/request/fp6_f....
The arguments advanced by that applicant illustrate the extent to which DG
RTD and DG INFSO had a concealed policy of disregarding Regulation 45/2001
and the national legislation transposing the provisions of Directive
95/46/EC.  

It is worth quoting that applicant about the practices of the Commission
services in their efforts to escape public scrutiny:

“An all-time low was reached when with the Commission services caused the
President of the Commission to misrepresent elementary facts to the
Ombudsman, Ares(2013)2952891 - 30/08/2013,
[2]http://www.asktheeu.org/en/request/583/r...
in their attempt to prevent the release of information about the DG INFSO
risk-based audits.”

Seen under the light of the preceding paragraphs the Court’s implied
refusal to provide an initial response cannot be accepted.

Taking inspiration from another applicant,
[3]http://www.asktheeu.org/en/request/fp6_f...,
the Court’s attention is drawn to the following:

An applicant cannot compel the Court’s administrative department(s) to
provide an initial response an application pursuant to Decision 12/2005.
However, an applicant can bring the attention of the Supreme Audit
Institutions of the 27 Member States, the supervising authorities of
Directive 95/46/EC, and of Members of the European Parliament to the
present application, emphasizing the underlying doubts about the Court’s
compliance with Regulation 45/2001 in so far the Court’s audits of the
Research family DGs are concerned. Perhaps such an 'escalation' might
persuade the Court’s administrative department(s) to provide even a
rudimentary initial response to the present application.

Having regard to the above points, in the event the Court’s administrative
department(s)  does not provide an initial response within a week, the
applicant will write to the President of the Court – notifying the third
parties of the preceding paragraphs– requesting his kind intervention,
such that the Court's administrative departments respect Decision 12/2005
and provide an initial response.  

Yours faithfully,

Kostas VITSOS

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Dear European Court of Auditors,

Thank you for the response of 21 November to the application of reconsideration.

I respectfully submit that the response is wholly inadequate. In my view the Court did not carry out a diligent search for documents. For this reason, the status of the final response will be designed as "refused".

For legal reasons, it is hereby kindly requested that the Court provide me with its response to the application for reconsideration as a document bearing the Court's emblem, a reference number and the handwritten signature of a duly authorised official .

In the event of a complaint to the European Ombudsman or legal action before the General Court, it will be inappropriate to to submit as evidence mere emails. This is even more so when the Court's administrative department(s) failed to respond to emails about applications in accordance to Decision 12/2005, and have advanced the 'excuse' of emails going to the wrong email folders.

I am looking forward to receive a formal document with the Court's response to the application for reconsideration.

Yours faithfully,

Kostas VITSOS