Presentations in January 2011 to the Court by European Commission officials, FP6 & FP7 programmes

La respuesta a esta solicitud está muy retrasada. Tribunal de Cuentas Europeo ya debería haber respondido (detalles). Puedes apelar pidiendo una revisión interna.

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. APPLICATION

The present application is subject to the Court’s Decision No 12/2005 regarding public access to Court documents 2009/C 67/01 (henceforth the ‘Decision’).

The requested documents concern the presentations given by European Commission officials to the Court in January 2011, as well as any documents handed over thereafter to the Court on the occasion of the presentations. The term ‘official’ herein is to be understood as both a Commission official who made the presentation, as well as a co-author of a presentation, even though such co-authors may not necessarily have visited the Court in January 2011.

The term ‘presentation’ also means a ‘training course’ like the ‘CETFI Course’.

Copies of the following documents are kindly requested:

1. The documents with which the Court invited the officials to make the presentations.

2. In case the initiative for the presentations was at the Commission’s side, the documents with which the officials suggested to the Court the organisation of the presentations.

3. The documents with which the Court and the Commission officials agreed the dates of the presentations. By definition, such documents predate the respective presentation. There may be emails, note to the file and so on.

4. Any follow-up documents about the presentations. For instance, such documents may be emails with which the officials dispatched to the Court copies of their presentations.

5. Every single presentation the officials made to the Court in January 2011, except the presentation released by the Court on 27/7/2013 via asktheei.org, http://www.asktheeu.org/en/request/584/r....

II. TRANSFER OF PERSONAL DATA

The documents applied for contain will certainly contain the personal data of the Court’s and the Commission’s officials, for which article 8(2) of Regulation No 45/2001 may applicable, as well as article 4(1)(b) of the Decision.

Regarding the personal data of the Court’s officials, I am not requesting the transfer of their personal data. Therefore, in my view the Court should redact what is strictly necessary in order not to disclose the identity of the Court’s official(s). The Court’s Unit(s) to which the official(s) belong need not necessarily be redacted.

Regarding the personal data of the Commission’s officials, I am not, in general, requesting the transfer of their personal data. Therefore, in my view the Court should redact what is strictly necessary in order not to disclose the identity of those officials. However, in my view the identities of the authors and the presenters is to be released; this applies specifically to the authors whose identity is already public information. In all cases, the Units to which the Commission officials belonged should be released.

III. OVERRIDING PUBLIC INTEREST FOR PRESENTATIONS CONCERNING THE FP6 & FP7 PROGRAMMES

In the last few weeks, tens of requests have been lodged with the European Commission via asktheeu.org pursuant to Regulation No 1049/2001 about the FP6 & FP7 programmes, with particular emphasis on the fundamental right of the personal data protection.

It has already emerged that the prior notifications DG ENTR DPO-3334.1, DG INFSO DPO-3338.1, DG RTD DPO-3398 (summer of 2012), and DG MOVE-ENER DPO-3420.1 contain two false declarations, namely the statements ‘This
processing has been submitted to the EDPS who concluded that Article 27 is not applicable’ and ‘3. Sub-Contractors —’. As another applicant stated, http://www.asktheeu.org/en/request/funda..., “When a public administration is prepared to risk criminal liabilities for the few officials who are personally liable for the factual accuracy of statutory
instruments, it will not hesitate for a second to disregard a provision like article 28(2) of Regulation No 45/2001”.

Consequently, every single presentation made to the Court by the former DG INFSO S.5 Unit is to be scrutinised by the public in order to see whether that Unit has attempted to mislead the Court about the Unit's external financial audits. To this end, the organisation of the presentations is essential in order to establish how many presentations officials of the S.5 Unit gave to the Court.

The overriding public interest argument is based on the premise that when an administrative Unit of an Institution has been prepared to act like an outlaw for many years, then anything that the Unit may have attempted to do involving interactions with third-parties like the Court must be scrutinised, either to unearth further wrongful acts of the Unit, or check whether that Unit has infringed the fundamental rights of natural and legal persons enshrined in Union and national law.

Yours faithfully,

Zois Zervos

Tribunal de Cuentas Europeo

Dear Zois Zervos,

Thank you for your email of 14 July 2013, in which you request the access
to the documents concerning the presentations given by European Commission
officials to the Court in January 2011.

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 2 August 2013.

Kindest regards,

ECA Info

From:        Zois Zervos <[FOI #675 email]>
To:        information requests at European Court of Auditors
<[European Court of Auditors request email]>
Date:        14/07/2013 11:59
Subject:        access to information request - Presentations in January
2011 to the Court by European Commission officials, FP6 & FP7 programmes

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

     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. APPLICATION
   
    The present application is subject to the Court’s Decision No
    12/2005 regarding public access to Court documents 2009/C 67/01
    (henceforth the ‘Decision’).
   
    The requested documents concern the presentations given by European
    Commission officials to the Court in January 2011, as well as any
    documents handed over thereafter to the Court on the occasion of
    the presentations. The term ‘official’ herein is to be understood
    as both a Commission official who made the presentation, as well as
    a co-author of a presentation, even though such co-authors may not
    necessarily have visited the Court in January 2011.
   
    The term ‘presentation’ also means a ‘training course’ like the
    ‘CETFI Course’.
   
    Copies of the following documents are kindly requested:
   
    1. The documents with which the Court invited the officials to make
    the presentations.
   
    2. In case the initiative for the presentations was at the
    Commission’s side, the documents with which the officials suggested
    to the Court the organisation of the presentations.
   
    3. The documents with which the Court and the Commission officials
    agreed the dates of the presentations. By definition, such
    documents predate the respective presentation. There may be emails,
    note to the file and so on.
   
    4. Any follow-up documents about the presentations. For instance,
    such documents may be emails with which the officials dispatched to
    the Court copies of their presentations.
   
    5. Every single presentation the officials made to the Court in
    January 2011, except the presentation released by the Court on
    27/7/2013 via asktheei.org,
   
[1]http://www.asktheeu.org/en/request/584/r....
   
    II. TRANSFER OF PERSONAL DATA
   
    The documents applied for contain will certainly contain the
    personal data of the Court’s and the Commission’s officials, for
    which article 8(2) of Regulation No 45/2001 may applicable, as well
    as article 4(1)(b) of the Decision.
   
    Regarding the personal data of the Court’s officials, I am not
    requesting the transfer of their personal data. Therefore, in my
    view the Court should redact what is strictly necessary in order
    not to disclose the identity of the Court’s official(s). The
    Court’s Unit(s) to which the official(s) belong need not
    necessarily be redacted.
   
    Regarding the personal data of the Commission’s officials, I am
    not, in general, requesting the transfer of their personal data.
    Therefore, in my view the Court should redact what is strictly
    necessary in order not to disclose the identity of those officials.
    However, in my view the identities of the authors and the
    presenters is to be released; this applies specifically to the
    authors whose identity is already public information. In all cases,
    the Units to which the Commission officials belonged should be
    released.
   
    III. OVERRIDING PUBLIC INTEREST FOR PRESENTATIONS CONCERNING THE
    FP6 & FP7 PROGRAMMES
   
    In the last few weeks, tens of requests have been lodged with the
    European Commission via asktheeu.org pursuant to Regulation No
    1049/2001 about the FP6 & FP7 programmes, with particular emphasis
    on the fundamental right of the personal data protection.
   
    It has already emerged that the prior notifications DG ENTR
    DPO-3334.1, DG INFSO DPO-3338.1, DG RTD DPO-3398 (summer of 2012),
    and DG MOVE-ENER DPO-3420.1 contain two false declarations, namely
    the statements ‘This
    processing has been submitted to the EDPS who concluded that
    Article 27 is not applicable’ and ‘3. Sub-Contractors —’. As
    another applicant stated,
    [2]http://www.asktheeu.org/en/request/funda...,
    “When a public administration is prepared to risk criminal
    liabilities for the few officials who are personally liable for the
    factual accuracy of statutory
    instruments, it will not hesitate for a second to disregard a
    provision like article 28(2) of Regulation No 45/2001”.
   
    Consequently, every single presentation made to the Court by the
    former DG INFSO S.5 Unit is to be scrutinised by the public in
    order to see whether that Unit has attempted to mislead the Court
    about the Unit's external financial audits. To this end, the
    organisation of the presentations is essential in order to
    establish how many presentations officials of the S.5 Unit gave to
    the Court.
   
    The overriding public interest argument is based on the premise
    that when an administrative Unit of an Institution has been
    prepared to act like an outlaw for many years, then anything that
    the Unit may have attempted to do involving interactions with
    third-parties like the Court must be scrutinised, either to unearth
    further wrongful acts of the Unit, or check whether that Unit has
    infringed the fundamental rights of natural and legal persons
    enshrined in Union and national law.
   
    Yours faithfully,
   
    Zois Zervos
   
    -------------------------------------------------------------------
   
    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 #675 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
    [3]http://www.asktheeu.org/en/help/officers
   
   
   
    -------------------------------------------------------------------

**********************
Disclaimer: If you have received this message in error, please contact the
sender immediately.

**********************
Avertissement : Si ce message vous a été adressé par erreur, nous vous
prions de vous mettre immédiatement en rapport avec l’expéditeur.

References

Visible links
1. http://www.asktheeu.org/en/request/584/r...
2. http://www.asktheeu.org/en/request/funda...
3. http://www.asktheeu.org/en/help/officers

Tribunal de Cuentas Europeo

Dear Zois Zervos,

We are unable to provide you with any documents, as your request was
insufficiently specific regarding what presentations by whom you are
referring to.
We draw your attention to the fact that, pursuant to Article 7 of Decision
No. 12/2005, you may make a request for reconsideration within 15 working
days of receiving this reply, and ask the ECA to reconsider its position.

Kindest regards,

Aidas Palubinskas

From:        Zois Zervos <[FOI #675 email]>
To:        information requests at European Court of Auditors
<[European Court of Auditors request email]>
Date:        14/07/2013 11:59
Subject:        access to information request - Presentations in January
2011 to the Court by European Commission officials, FP6 & FP7 programmes

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

     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. APPLICATION
   
    The present application is subject to the Court’s Decision No
    12/2005 regarding public access to Court documents 2009/C 67/01
    (henceforth the ‘Decision’).
   
    The requested documents concern the presentations given by European
    Commission officials to the Court in January 2011, as well as any
    documents handed over thereafter to the Court on the occasion of
    the presentations. The term ‘official’ herein is to be understood
    as both a Commission official who made the presentation, as well as
    a co-author of a presentation, even though such co-authors may not
    necessarily have visited the Court in January 2011.
   
    The term ‘presentation’ also means a ‘training course’ like the
    ‘CETFI Course’.
   
    Copies of the following documents are kindly requested:
   
    1. The documents with which the Court invited the officials to make
    the presentations.
   
    2. In case the initiative for the presentations was at the
    Commission’s side, the documents with which the officials suggested
    to the Court the organisation of the presentations.
   
    3. The documents with which the Court and the Commission officials
    agreed the dates of the presentations. By definition, such
    documents predate the respective presentation. There may be emails,
    note to the file and so on.
   
    4. Any follow-up documents about the presentations. For instance,
    such documents may be emails with which the officials dispatched to
    the Court copies of their presentations.
   
    5. Every single presentation the officials made to the Court in
    January 2011, except the presentation released by the Court on
    27/7/2013 via asktheei.org,
   
[1]http://www.asktheeu.org/en/request/584/r....
   
    II. TRANSFER OF PERSONAL DATA
   
    The documents applied for contain will certainly contain the
    personal data of the Court’s and the Commission’s officials, for
    which article 8(2) of Regulation No 45/2001 may applicable, as well
    as article 4(1)(b) of the Decision.
   
    Regarding the personal data of the Court’s officials, I am not
    requesting the transfer of their personal data. Therefore, in my
    view the Court should redact what is strictly necessary in order
    not to disclose the identity of the Court’s official(s). The
    Court’s Unit(s) to which the official(s) belong need not
    necessarily be redacted.
   
    Regarding the personal data of the Commission’s officials, I am
    not, in general, requesting the transfer of their personal data.
    Therefore, in my view the Court should redact what is strictly
    necessary in order not to disclose the identity of those officials.
    However, in my view the identities of the authors and the
    presenters is to be released; this applies specifically to the
    authors whose identity is already public information. In all cases,
    the Units to which the Commission officials belonged should be
    released.
   
    III. OVERRIDING PUBLIC INTEREST FOR PRESENTATIONS CONCERNING THE
    FP6 & FP7 PROGRAMMES
   
    In the last few weeks, tens of requests have been lodged with the
    European Commission via asktheeu.org pursuant to Regulation No
    1049/2001 about the FP6 & FP7 programmes, with particular emphasis
    on the fundamental right of the personal data protection.
   
    It has already emerged that the prior notifications DG ENTR
    DPO-3334.1, DG INFSO DPO-3338.1, DG RTD DPO-3398 (summer of 2012),
    and DG MOVE-ENER DPO-3420.1 contain two false declarations, namely
    the statements ‘This
    processing has been submitted to the EDPS who concluded that
    Article 27 is not applicable’ and ‘3. Sub-Contractors —’. As
    another applicant stated,
    [2]http://www.asktheeu.org/en/request/funda...,
    “When a public administration is prepared to risk criminal
    liabilities for the few officials who are personally liable for the
    factual accuracy of statutory
    instruments, it will not hesitate for a second to disregard a
    provision like article 28(2) of Regulation No 45/2001”.
   
    Consequently, every single presentation made to the Court by the
    former DG INFSO S.5 Unit is to be scrutinised by the public in
    order to see whether that Unit has attempted to mislead the Court
    about the Unit's external financial audits. To this end, the
    organisation of the presentations is essential in order to
    establish how many presentations officials of the S.5 Unit gave to
    the Court.
   
    The overriding public interest argument is based on the premise
    that when an administrative Unit of an Institution has been
    prepared to act like an outlaw for many years, then anything that
    the Unit may have attempted to do involving interactions with
    third-parties like the Court must be scrutinised, either to unearth
    further wrongful acts of the Unit, or check whether that Unit has
    infringed the fundamental rights of natural and legal persons
    enshrined in Union and national law.
   
    Yours faithfully,
   
    Zois Zervos
   
    -------------------------------------------------------------------
   
    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 #675 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
    [3]http://www.asktheeu.org/en/help/officers
   
   
   
    -------------------------------------------------------------------

**********************
Disclaimer: If you have received this message in error, please contact the
sender immediately.

**********************
Avertissement : Si ce message vous a été adressé par erreur, nous vous
prions de vous mettre immédiatement en rapport avec l’expéditeur.

References

Visible links
1. http://www.asktheeu.org/en/request/584/r...
2. http://www.asktheeu.org/en/request/funda...
3. http://www.asktheeu.org/en/help/officers

Dear European Court of Auditors,

This is a application for reconsideration pursuant to article 7 of the Court’s Decision 12/2005.

I. INITIAL REPLY

It is worth recalling that article 6 of the Court’s Decision 12/2005 lays down the essential steps of processing initial applications. The Director of Audit and Communications may have informed other officials of the Court about this particular application. It means that the initial reply has been approved by more than one official.

As the EU Courts have consistently held for applications according to Regulation No 1049/2001, in handling the initial application the Institution is obliged to undertake a diligent search and inform the applicant about the results of the search, in particular the documents the Institution has indentified. There is no reason to assume that the Court has a lower standard to meet in searching for documents regarding an application pursuant to the Decision 12/2005.

The EU Courts have also consistently held that acts of Institutions are presumed legal. Applying the reasoning of the EU Courts in Judgments about Regulation No 1049/2001, in the framework of an application pursuant to the Decision 12/2005 the Court’s initial reply about the non-existence of documents does not leave, in principle, much room for applying for a reconsideration, which is relevant in cases the Court has refused access, either partially or totally.

However, the present application is very exceptional in several respects. This is set out in the next section.

II. CONSIDERATIONS ABOUT THE DG INFSO PRESENTATION(S) IN JANUARY 2011

It has now fully emerged in full public view that the DG MOVE and ENER prior notification DPO-3340.1 has two false statements, http://www.asktheeu.org/en/request/exter..., in particular that the EDPS was consulted and that no subcontractors have been engaged. In the next few weeks it will also emerge in asktheeu.org that three prior notifications DG ENTR DPO-3334.1, DG INFSO DPO-3338.1, and DG RTD DPO-3338 (as of summer 2012) have the same two false declarations. Moreover, their legal basis is, in essence, non-existing. One of the immediate conclusions is that the external financial audits of the Research family DGs are outright unlawful in so far they have processed personal data of third parties to the audited projects.

In any action before the General Courts about these audits, the General Court will likely examine on its own motion whether the evidence – personal data of third parties - the Research family DGs have produced before it is admissible evidence. It is very difficult to see how the Court will declare it as admissible evidence, especially after the Bavarian Lager and Schecke Judgments of the Court of Justice (Grand Chamber). All it will take is a party to inform the General Court about the two false declarations of these four prior notifications. The Court will immediately realise that there is something extremely peculiar about the audits regarding compliance with Union law.

The Court of Auditors has now at hand some explaining to do about its own audits of the Research family DGs and their compliance with Regulation No 45/2001. There are a few applications pursuant to Decision 12/2005 submitted via asktheeu.org about it.

The prior notifications DG ENTR DPO-3334.1, DG RTD DPO-3338 (summer 2012) and DG MOVE-ENER DPO 3420.1 are nothing but copies of the DG INFSO prior notification DPO-3338.1, with only the names of the Directorate-General and the officials adapted to the particularities of each DG. It was DG INFSO that pioneered the risk-based audits and ‘taught’ these audit methods to the other three DGs, which somehow were persuaded to follow. Annual Activity report of DG INFSO have proudly informed the public about its innovative auditing methods of FP6 contractors and FP7 beneficiaries (e.g. 2011 report). According to these reports, the Court of Auditors ‘praised’ DG INFSO for its innovative audit methods.

Nearly six and two months after the Bavarian Lager and Schecke Judgments of the Court of Justice respectively, two officials of the former DG INFSO external audits S.5 Unit made a presentation to the Court about the risk-based audits, which the Court found worthy to report in its publication. Put differently, the architects of the gravely unlawful risk-based audits proudly presented to the Court their innovations in auditing, which according to DG INFSO the Court found them as worth of the Court’s praising.

In another application the Court released the presentation entitled ‘Risk-based audits’ that the DG INFSO staff made to the Court in January 2011, http://www.asktheeu.org/en/request/584/r... 1.ppt. Slide 8 and 41 are empty. In addition, the first part of the released presentation is very similar to a presentation (PDF file) that the same DG INFSO official had posted for more than a year in the website about the 2011 Belgian Anti-Fraud Congress, Sheraton Brussels Airport, 24/3/2011. This particular presentation is the subject of the GestDem 2013/3691 application, http://www.asktheeu.org/en/request/prese.... In both presentations, the properties of the PowerPoint and PDF files are “CETFI Course”. There is simply too much ‘CETFI Course’ in those two presentations.

According to the Court’s initial reply, the presentation on the 21/1/2011 was arranged without any documents to trace its organisation, be it an email, a note to the file and the like. While it is possible that no document was drawn up about the presentation organisation and everything was done orally, devoting space in a Court’s publication about the presentation in question is not in line with a total absence of any document about the organisation of the presentation.

The emails deserve special considerations, as even if the Court’s officials have deleted them from their own mailboxes, it is nearly certain that they are kept in the backup files of the Court’s email servers. This means that the Court may hold emails, i.e. documents, which the Court did not seek to identify them and release them. The EU Courts have held that an Institution may not rely on its administrative burden to refuse access, at least without consulting with the applicant.

It is worth recalling that the applicant, or other applicants lodging similar applications with the Court, may bring an action before the General Court and as part of the organisation of the procedure request that officials of the Court of Auditors testify under oath. Were the General Court to grant such a measure, those officials would have to give a complete explanation about how the presentation was organised. This may reveal that at least a few lines were drawn up in an email.

III. APPLICATION FOR RECONSIDERATION

An application is hereby respectfully submitted. It is expected that the Court will duly take into full account the foregoing observations and considerations.

Yours faithfully,

Zois Zervos

Tribunal de Cuentas Europeo

Dear Zois Zervos,

Thank you for your email of 24July 2013, in which you apply for
reconsideration as set forth 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 14 August 2013.
Kindest regards,
Aidas Palubinskas

From:        Zois Zervos <[FOI #675 email]>
To:        [European Court of Auditors request email]
Date:        24/07/2013 10:42
Subject:        Re: access to information request - Presentations in
January 2011 to the Court by European Commission officials, FP6 & FP7
programmes

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

Dear European Court of Auditors,

This is a application for reconsideration pursuant to article 7 of the
Court’s Decision 12/2005.

I. INITIAL REPLY

It is worth recalling that article 6 of the Court’s Decision 12/2005 lays
down the essential steps of processing initial applications. The Director
of Audit and Communications may have informed other officials of the Court
about this particular application. It means that the initial reply has
been approved by more than one official.

As the EU Courts have consistently held for applications according to
Regulation No 1049/2001, in handling the initial application the
Institution is obliged to undertake a diligent search and inform the
applicant about the results of the search, in particular the documents the
Institution has indentified. There is no reason to assume that the Court
has a lower standard to meet in searching for documents regarding an
application pursuant to the Decision 12/2005.

The EU Courts have also consistently held that acts of Institutions are
presumed legal. Applying the reasoning of the EU Courts in Judgments about
Regulation No 1049/2001, in the framework of an application pursuant to
the Decision 12/2005 the Court’s initial reply about the non-existence of
documents does not leave, in principle, much room for applying for a
reconsideration, which is relevant in cases the Court has refused access,
either partially or totally.

However, the present application is very exceptional in several respects.
This is set out in the next section.

II. CONSIDERATIONS ABOUT THE DG INFSO PRESENTATION(S) IN JANUARY 2011

It has now fully emerged in full public view that the DG MOVE and ENER
prior notification DPO-3340.1 has two false statements,
[1]http://www.asktheeu.org/en/request/exter...,
 in particular that the EDPS was consulted and that no subcontractors have
been engaged. In the next few weeks it will also emerge in asktheeu.org
that three prior notifications DG ENTR DPO-3334.1, DG INFSO DPO-3338.1,
and DG RTD DPO-3338 (as of summer 2012) have the same two false
declarations. Moreover, their legal basis is, in essence, non-existing.
 One of the immediate conclusions is that the external financial audits of
the Research family DGs are outright unlawful in so far they have
processed personal data of third parties to the audited projects.

In any action before the General Courts about these audits, the General
Court will likely examine on its own motion whether the evidence –
personal data of third parties - the Research family DGs have produced
before it is admissible evidence. It is very difficult to see how the
Court will declare it as admissible evidence, especially after the
Bavarian Lager and Schecke Judgments of the Court of Justice (Grand
Chamber). All it will take is a party to inform the General Court about
the two false declarations of these four prior notifications. The Court
will immediately realise that there is something extremely peculiar about
the audits regarding compliance with Union law.  

The Court of Auditors has now at hand some explaining to do about its own
audits of the Research family DGs and their compliance with Regulation No
45/2001. There are a few applications pursuant to Decision 12/2005
submitted via asktheeu.org about it.

The prior notifications DG ENTR DPO-3334.1, DG RTD DPO-3338 (summer 2012)
and DG MOVE-ENER DPO 3420.1 are nothing but copies of the DG INFSO prior
notification DPO-3338.1, with only the names of the Directorate-General
and the officials adapted to the particularities of each DG. It was DG
INFSO that pioneered the risk-based audits and ‘taught’ these audit
methods to the other three DGs, which somehow were persuaded to follow.
Annual Activity report of DG INFSO have proudly informed the public about
its innovative auditing methods of FP6 contractors and FP7 beneficiaries
(e.g. 2011 report). According to these reports, the Court of Auditors
‘praised’ DG INFSO for its innovative audit methods.

Nearly six and two months after the Bavarian Lager and Schecke Judgments
of the Court of Justice respectively, two officials of the former DG INFSO
external audits S.5 Unit made a presentation to the Court about the
risk-based audits, which the Court found worthy to report in its
publication. Put differently, the architects of the gravely unlawful
risk-based audits proudly presented to the Court their innovations in
auditing, which according to DG INFSO the Court found them as worth of the
Court’s praising.

In another application the Court released the presentation entitled
‘Risk-based audits’ that the DG INFSO staff made to the Court in January
2011,
[2]http://www.asktheeu.org/en/request/584/r....
Slide 8 and 41 are empty. In addition, the first part of the released
presentation is very similar to a presentation (PDF file) that the same DG
INFSO official had posted for more than a year in the website about the
2011 Belgian Anti-Fraud Congress, Sheraton Brussels Airport, 24/3/2011.
This particular presentation is the subject of the GestDem 2013/3691
application,
[3]http://www.asktheeu.org/en/request/prese.... In
both presentations, the properties of the PowerPoint and PDF files are
“CETFI Course”. There is simply too much ‘CETFI Course’ in those two
presentations.

According to the Court’s initial reply, the presentation on the 21/1/2011
was arranged without any documents to trace its organisation, be it an
email, a note to the file and the like. While it is possible that no
document was drawn up about the presentation organisation and everything
was done orally, devoting space in a Court’s publication about the
presentation in question is not in line with a total absence of any
document about the organisation of the presentation.

The emails deserve special considerations, as even if the Court’s
officials have deleted them from their own mailboxes, it is nearly certain
that they are kept in the backup files of the Court’s email servers. This
means that the Court may hold emails, i.e. documents, which the Court did
not seek to identify them and release them. The EU Courts have held that
an Institution may not rely on its administrative burden to refuse access,
at least without consulting with the applicant.

It is worth recalling that the applicant, or other applicants lodging
similar applications with the Court, may bring an action before the
General Court and as part of the organisation of the procedure request
that officials of the Court of Auditors testify under oath. Were the
General Court to grant such a measure, those officials would have to give
a complete explanation about how the presentation was organised. This may
reveal that at least a few lines were drawn up in an email.  

III. APPLICATION FOR RECONSIDERATION

An application is hereby respectfully submitted. It is expected that the
Court will duly take into full account the foregoing observations and
considerations.

Yours faithfully,

Zois Zervos

mostrar partes citadas

Tribunal de Cuentas Europeo

Dear Zois Zervos,

We hereby acknowledge the receipt of your request for reconsideration,
which you submitted to the ECA by email of 24 July 2013.

Please be informed that due to the vacation period the initial deadline of
15 working days (ending on 14 August 2013) must be exceptionnally extended
by another 15 working days pursuant to Article 8(3) of Decision 12-2005 of
the Court of Auditors regarding public access to Court documents.

You will receive a reply by the end of the business day on 5 September
2013.

Kind regards,
ECA Info

From:        Zois Zervos <[FOI #675 email]>
To:        [European Court of Auditors request email]
Date:        24/07/2013 10:42
Subject:        Re: access to information request - Presentations in
January 2011 to the Court by European Commission officials, FP6 & FP7
programmes

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

Dear European Court of Auditors,

This is a application for reconsideration pursuant to article 7 of the
Court’s Decision 12/2005.

I. INITIAL REPLY

It is worth recalling that article 6 of the Court’s Decision 12/2005 lays
down the essential steps of processing initial applications. The Director
of Audit and Communications may have informed other officials of the Court
about this particular application. It means that the initial reply has
been approved by more than one official.

As the EU Courts have consistently held for applications according to
Regulation No 1049/2001, in handling the initial application the
Institution is obliged to undertake a diligent search and inform the
applicant about the results of the search, in particular the documents the
Institution has indentified. There is no reason to assume that the Court
has a lower standard to meet in searching for documents regarding an
application pursuant to the Decision 12/2005.

The EU Courts have also consistently held that acts of Institutions are
presumed legal. Applying the reasoning of the EU Courts in Judgments about
Regulation No 1049/2001, in the framework of an application pursuant to
the Decision 12/2005 the Court’s initial reply about the non-existence of
documents does not leave, in principle, much room for applying for a
reconsideration, which is relevant in cases the Court has refused access,
either partially or totally.

However, the present application is very exceptional in several respects.
This is set out in the next section.

II. CONSIDERATIONS ABOUT THE DG INFSO PRESENTATION(S) IN JANUARY 2011

It has now fully emerged in full public view that the DG MOVE and ENER
prior notification DPO-3340.1 has two false statements,
[1]http://www.asktheeu.org/en/request/exter...,
 in particular that the EDPS was consulted and that no subcontractors have
been engaged. In the next few weeks it will also emerge in asktheeu.org
that three prior notifications DG ENTR DPO-3334.1, DG INFSO DPO-3338.1,
and DG RTD DPO-3338 (as of summer 2012) have the same two false
declarations. Moreover, their legal basis is, in essence, non-existing.
 One of the immediate conclusions is that the external financial audits of
the Research family DGs are outright unlawful in so far they have
processed personal data of third parties to the audited projects.

In any action before the General Courts about these audits, the General
Court will likely examine on its own motion whether the evidence –
personal data of third parties - the Research family DGs have produced
before it is admissible evidence. It is very difficult to see how the
Court will declare it as admissible evidence, especially after the
Bavarian Lager and Schecke Judgments of the Court of Justice (Grand
Chamber). All it will take is a party to inform the General Court about
the two false declarations of these four prior notifications. The Court
will immediately realise that there is something extremely peculiar about
the audits regarding compliance with Union law.  

The Court of Auditors has now at hand some explaining to do about its own
audits of the Research family DGs and their compliance with Regulation No
45/2001. There are a few applications pursuant to Decision 12/2005
submitted via asktheeu.org about it.

The prior notifications DG ENTR DPO-3334.1, DG RTD DPO-3338 (summer 2012)
and DG MOVE-ENER DPO 3420.1 are nothing but copies of the DG INFSO prior
notification DPO-3338.1, with only the names of the Directorate-General
and the officials adapted to the particularities of each DG. It was DG
INFSO that pioneered the risk-based audits and ‘taught’ these audit
methods to the other three DGs, which somehow were persuaded to follow.
Annual Activity report of DG INFSO have proudly informed the public about
its innovative auditing methods of FP6 contractors and FP7 beneficiaries
(e.g. 2011 report). According to these reports, the Court of Auditors
‘praised’ DG INFSO for its innovative audit methods.

Nearly six and two months after the Bavarian Lager and Schecke Judgments
of the Court of Justice respectively, two officials of the former DG INFSO
external audits S.5 Unit made a presentation to the Court about the
risk-based audits, which the Court found worthy to report in its
publication. Put differently, the architects of the gravely unlawful
risk-based audits proudly presented to the Court their innovations in
auditing, which according to DG INFSO the Court found them as worth of the
Court’s praising.

In another application the Court released the presentation entitled
‘Risk-based audits’ that the DG INFSO staff made to the Court in January
2011,
[2]http://www.asktheeu.org/en/request/584/r....
Slide 8 and 41 are empty. In addition, the first part of the released
presentation is very similar to a presentation (PDF file) that the same DG
INFSO official had posted for more than a year in the website about the
2011 Belgian Anti-Fraud Congress, Sheraton Brussels Airport, 24/3/2011.
This particular presentation is the subject of the GestDem 2013/3691
application,
[3]http://www.asktheeu.org/en/request/prese.... In
both presentations, the properties of the PowerPoint and PDF files are
“CETFI Course”. There is simply too much ‘CETFI Course’ in those two
presentations.

According to the Court’s initial reply, the presentation on the 21/1/2011
was arranged without any documents to trace its organisation, be it an
email, a note to the file and the like. While it is possible that no
document was drawn up about the presentation organisation and everything
was done orally, devoting space in a Court’s publication about the
presentation in question is not in line with a total absence of any
document about the organisation of the presentation.

The emails deserve special considerations, as even if the Court’s
officials have deleted them from their own mailboxes, it is nearly certain
that they are kept in the backup files of the Court’s email servers. This
means that the Court may hold emails, i.e. documents, which the Court did
not seek to identify them and release them. The EU Courts have held that
an Institution may not rely on its administrative burden to refuse access,
at least without consulting with the applicant.

It is worth recalling that the applicant, or other applicants lodging
similar applications with the Court, may bring an action before the
General Court and as part of the organisation of the procedure request
that officials of the Court of Auditors testify under oath. Were the
General Court to grant such a measure, those officials would have to give
a complete explanation about how the presentation was organised. This may
reveal that at least a few lines were drawn up in an email.  

III. APPLICATION FOR RECONSIDERATION

An application is hereby respectfully submitted. It is expected that the
Court will duly take into full account the foregoing observations and
considerations.

Yours faithfully,

Zois Zervos

mostrar partes citadas

Dear European Court of Auditors,

I refer to the Court's email of 30/7/2013 according to which the Court set the 5th of September as the date on which it would provide the reply to the application for consideration.

Despite three weeks having passed from the 5th of September, the Court has not provided its final reply.

I would therefore appreciate if the Court would inform me about the time-frame of the final reply.

Yours faithfully,

Zois Zervos

Dear European Court of Auditors,

The purpose of this letter is to express the applicant's strong protest about the conduct of the the Court's administrative department(s) handling the present application for documents, a conduct which is - beyond a complete disregard of the Court's Decision 12/2005 - the very antithesis of sound administration.

By way of email of 30 July 2013 the Court informed the applicant that the Court's reconsideration Decision would have been dispatched on 5 September. The applicant made enquiries over email on 29 September, to which the Court has not replied.

Turning to the substance of the documents at issue, the highest ranking official of the S.5 Unit of the former DG INFSO, who is the lead author of the presentations at issue, has been the architect of the risk-based audits of DG INFSO. His pioneering audit techniques were adopted by the Research family DGs. The article 25 of Regulation No 45/2001 prior notification of DG INFSO about the external financial audits (including the risk-based audits) is DPO-3338.1. The corresponding prior notifications DG ENTR DPO-3334, DG RTD DPO-3398.1 and DG MOVE DPO-3420.1 about their external financial audits are essentially mere copies of the DG INFSO DPO-3338.1.

From several requests pursuant to Regulation No 1049/2001 via asktheeu.org it has emerged that those four prior notifications contain two false statements and their legal basis is non-existing; see to that effect the initial DG RTD reply to GestDem 2013-3351 at http://www.asktheeu.org/en/request/perso.... In particular, the DG RTD reply to request #7 amounts to an admission that DG RTD DPO-3398 has no legal basis. In conclusion, the above four prior notifications are nothing but an exercise of deceiving the public.

According to the second indent of article 1 of Commission Decision 597/2008 of 22 July 2008 the DPO-3338.1 data controller, the lead author of the presentations at issue, is personally liable for the two false statements of the DG INFSO DPO-3338.1. Deliberate false statements in official documents with the express purpose of deceit is typically a criminal offence.

By its own conduct in the application pursuant to Decision 12/2005, which is the subject of this protest, the Court's administrative departments appear to intend to cover up the illegal audit techniques of the said lead author and also the S.5 Unit of the former DG INFSO, by way of unlawfully failing to carry out a diligent search for documents and subsequently release then.

The underlying matters are extremely serious, since the very integrity of several administrative departments of the Court and of the Commission is at stake. By exercising the rights of accessing documents held by Institutions enshrined in TFEU and the Charter of Fundamental Rights of the EU, citizens will be able to scrutinise the conduct of DG INFSO and the Research family DGs, especially with respect to the fundamental right of personal data protection.

Taking a cue for the particular handling of the present application so far, the applicant has doubts whether the administrative departments of the Court are prepared to comply with Decision 12/2005, and whether the matter has been referred to a Member of the Court. Nevertheless, the applicant is determined to exercise its legal rights.

In case the administrative departments of the Court would not promptly provide the applicant with their reply to the request for reconsideration, the applicant will be compelled to write to the President of the Court, with other Institutions and National Authorities in cc, and inform the President about the underlying matters and the overriding public interest.

At the end of the day, the Court's administrative department ultimately serve the public interest and it is not their business to cover up unlawful policies of an administrative department of another Institution, and in doing so infringe Decision 12/2005 in full public view.

The applicant is looking forward to hearing from the administrative departments of the Court.

Yours faithfully,

Zois Zervos

Dear European Court of Auditors,

I refer to the application for reconsideration acknowledged by the Court on 30/7/2013, my enquiries of 29/9/2013, and the further provision of information on 17/10/2013, http://www.asktheeu.org/en/request/prese....

On the 21/11/2013 the Court provided the response to two applications for reconsideration, http://www.asktheeu.org/en/request/on_th... and http://www.asktheeu.org/en/request/fp6_f.... The Court explained that the delays in processing those two applications were due to "rather than appearing in the inbox were being bounced into a folder where they were not immediately visible".

It seems that the emails of the present application have also gone astray to the same email folder. On the other hand, it cannot be excluded that the Court provided the response after that applicant notified the Court that he would seek the intervention of the President of the Court and put in cc several national authorities.

The underlying matter are the DG INFSO risk-based audits. So far, in addition to DG INFSO, the integrity of the President of the Commission and the Ombudsman have been questioned. The Court is referred to the applications under Regulation 1049/2001 of the undersigned submitted to the Commission and the Ombudsman, http://www.asktheeu.org/en/request/dg_in... and http://www.asktheeu.org/en/request/dg_in... respectively.

It has now emerged that the 'CETFI course' that is at the core of this application for reconsideration is entirely unrelated to the DG INFSO presentation at the Court. Furthermore, the CETFI course was delivered by a DG INFSO official, who did not attend the session at the Court in January 2011, and took place several months later. All this suggests that in the initial response the Court was not frank with the document it disclosed.

In view of the above, in the event the Court does not inform me about the status of the application for reconsideration within the next few days, the applicant will submit a request to the President of the Court to intervene, placing all national authorities in cc, and explaining to the President and to the authorities the underlying substance.

Yours faithfully,

Zois Zervos