Legal opinions, Schecke Judgement, Personal Data Protection, FP6 & FP7 calls for proposals & negotiations

La solicitud fue parcialmente exitosa.

Dear Secretariat General (SG),

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:

All requested documents concern documents drawn up by the Legal Services, so the request is to be transferred to the Legal Service.

1. The internal notes or ‘working papers’ of the Legal Services reflecting the Judgment of the Court of Justice in the Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen (hereafter “the Schecke Judgment”). Such documents were not communicated outside the Legal Services to other Directorates-General.

2. The notes of the Legal Services reflecting the Schecke Judgment and dispatched to the various Directorates-General, advising them on legislative matters.

3. The notes of the Legal Services reflecting the Schecke Judgment and dispatched to the various Directorates-General, advising them on administrative procedures, such as (i) the conduct of inspections and audits pursuant to Union law and (ii) the negotiation and conclusion of FP7 grant agreements.

4. The notes of the Legal Services reflecting the Schecke Judgment dispatched to the Research family DGs, advising them on FP6 and FP7 contractual procedures, such (i) as the external financial audits pursuant to article FP7.II.22 and FP6.II.29, (ii) the execution of FP7 grant agreements (e.g. reviews).

5. The notes of the Legal Services concerning FP6 call for proposals and FP7 calls for proposals, in particular the requirement set out in the Guide for Applicants to include in their proposals short CVs or short profiles. An example is given further below under (E1).

6. The notes of the Legal Services concerning FP6 and FP7 Negotiation Guides, in particular the requirement set out in the Guide to include in the contract/agreement short CVs or short profiles of key personnel. An example is given further below under (E2).

7. The notes of the Legal Services concerning FP6 and FP7 Negotiation Guides, in particular the requirement set out in the Guides to include in the contract/agreement the forewarning that “If the named key persons do not in fact take part in the work, or are substituted by other persons without the knowledge of the Commission, this could be seen as beneficiaries not fulfilling their obligations towards the technical quality of the work”. An example is given further below under (E2).

In my opinion, an overriding public interest exists, warranting the full release of all requested documents, even though, conceivably, one may attempt to reply upon the exception about legal advice to partially release the documents. The reasons are outlined below.

Firstly, for legal opinions related to a proposal for a legislative act, even for an opinion that is somewhat loosely associated with a proposal, the case law of the EU Courts strongly indicates that full release is the ‘norm’ when the proposal is related to the fundamental right of personal data protection.

Secondly, the Schecke Judgment made legal history as it invalidated a provision of Union law on the sole grounds of personal data protection and proportionality. The Court has thus reaffirmed the fundamental importance of privacy in the EU. It follows therefore that for administrative, and infinitely more for contractual, procedures of an Institution strict observance of Regulation No 45/2001 is absolutely fundamental. Any reasonable suspicion regarding willful disregard of Regulation No 45/2001 for administrative and contractual procedures by an Institution will automatically render all documents requested pursuant to Regulation No 1049/2001 subject to full release.

Thirdly, it is evident from the wording of requests (4) – (7) above that the applicant entertains serious doubts about the lawfulness of the measures pursued by the Research family DGs. It is indeed very difficult to see how the underlying measures have been compliant with Regulation No 45/2001, in view of the fact that the prior notifications DG RTD DPO-978.1 – DPO.978.5, DG RTD DPO-2382 and DG INFSO DPO-1260 have been totally silent about ‘profiles’. Furthermore, it is nearly certain that the Research family DGs have “overlooked” the provisions of article 12(1) of Regulation No 45/2001 and have “forgotten” to notify the data subjects that they processed their personal data at the time of proposal evaluation. In conjunction with the apparent defects of DPO-978.1 to DPO-978.5, the “forgetfulness” of the Research family DGs becomes far more inexplicable, if not outright deliberate. Needless to say that what all that means in terms of the provision of article 49 or Regulation No 45/2001.

In case the Legal Services have drawn up a few paragraphs about (4) – (7), the public is entitled to scrutinise their advice. In case the Legal Services has not drawn up a single paragraph, the only logical conclusion is that they were not requested to do so by the lead service. This will give rise to further questions about the prudency and diligence of the lead service. It will also reinforce the overriding public interest for the release of the documents under (3) above.

********* Extracts from FP7 Guide to Applicants and FP7 Negotiations Guide ************

E1. Guide for Applicants, FP7-ICT-2011-C FET-Open Scheme, Page 56/69

2.2 Individual participants
For each participant in the proposed project, provide a brief description of the legal entity, the main tasks they have been attributed, and the previous experience relevant to those tasks. Provide also a short profile of the individuals who will be undertaking the work.

E2. Negotiation Guidance Notes, FP7 Collaborative Projects, Networks of Excellence, Coordination and Support Actions, Research for the benefit of Specific Groups (in particular SMEs), Version 10/9/2007, page 23/86

B 2.2 Beneficiaries
This section should be based on section 2.2 of part B of the proposal but possibly in a reduced format, if requested by the project Officer. Upon request of the Commission you may be asked to include a full description in an Appendix to your Annex I.

For each beneficiary provide a brief description of the organisation (including names of key persons to be involved), the main tasks attributed to them in the project, and the previous experience relevant to those tasks. Provide also a short profile of the personnel who will be undertaking the work. If the named key persons do not in fact take part in the work, or are substituted by other persons without the knowledge of the Commission, this could be seen as beneficiaries not fulfilling their obligations towards the technical quality of the work. This could lead to a more in-depth review of the project.

Yours faithfully,

Mr. Tasos Ntetsikas

Secretaría General de la Comisión Europea

1 Adjuntos

Dear Mr. Ntetsikas,

 

I refer to your e-mail of 26 June 2013 sent in which you request access,
under Regulation 1049/2001 regarding public access to European Parliament,
Council and Commission documents (Official Journal L145, 31.05.2001, page
43), to:

 

1. The internal notes or ‘working papers’ of the Legal Services reflecting
the Judgment of the Court of Justice in the Joined Cases C-92/09 and
C-93/09;

                2. The notes of the Legal Services reflecting the Schecke
Judgment and dispatched to the various Directorates-General, advising them
on legislative matters and on administrative procedures;

                3. The notes of the Legal Services reflecting the Schecke
Judgment and dispatched to the various Directorates-General, advising them

4. The notes of the Legal Services reflecting the Schecke Judgment
dispatched to the Research family DGs, advising them on FP6 and FP7
contractual procedures    

5. The notes of the Legal Services concerning FP6 call for proposals and
FP7 calls for proposals, in particular the requirement set out in the
Guide for Applicants to include in their proposals short CVs or short
profiles. An example is given further below under (E1).

                6. The notes of the Legal Services concerning FP6 and FP7
Negotiation Guides, in particular the requirement set out in the Guide to
include in the contract/agreement short CVs or short profiles of key
personnel.

7. The notes of the Legal Services concerning FP6 and FP7 Negotiation
Guides, in particular the requirement set out in the Guides to include in
the contract/agreement the forewarning that “If the named key persons do
not in fact take part in the work, or are substituted by other persons
without the knowledge of the Commission, this could be seen as
beneficiaries not fulfilling their obligations towards the technical
quality of the work”.

 

Your request for access to documents has been registered under reference
GESTDEM 2013/3548. In accordance with Regulation 1049/2001 you will
receive for each of the above requests a response within 15 working days.
The time limit will expire on 25/07/2013. In case this time limit needs to
be extended, you will be informed in due course.

 

Yours sincerely,

 

 

 

Diana TILOUCHE
 
European Commission
Legal Service

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

 

References

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Secretaría General de la Comisión Europea

7 Adjuntos

Dear Mr Ntetsikas,

 

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

 

Yours sincerely,

 

 

 

 

Diana TILOUCHE
 
European Commission
Legal Service

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

 

References

Visible links
1. mailto:[email address]