Document 3
Ref. Ares(2020)587318 - 30/01/2020
EUROPEAN COMMISSION
Brussels, 23.12.2018
C(2018) 9222 final
Sphinx sh.p.k
Rruga Ismail Qemali
Pallati 34/1, Kati 1/3
Tirana
Albania
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Subject: Your confirmatory application for access to documents – Gestdem 2018/6110
Dear
,
I refer to your email of 26 November 2018, registered on the same day, in which you lodge
a confirmatory application in accordance with Article 7(2) of Regulation 1049/2001
regarding public access to European Parliament, Council and Commission documents2
(hereafter ‘Regulation 1049/2001’).
In your initial application of 13 November 2018, you requested a copy of the certificates of
origin provided by the company Infosoft System Sh.p.k. following the implementation of
the supply contract awarded following the call for tenders EuropeAid/137465/IH/SUP/AL –
IPA – Supply and installation of an audiovisual system for plenary sessions of the Albanian
Parliament.
By letter of 21 November 2018, the Directorate-General for Neighbourhood and
Enlargement Negotiations informed you that it was not in the possession of the documents
falling within the scope of your request. Furthermore, it informed you that the European
Commission was not a party to the contract pertaining to the tender procedure in question
and that the certificates of origin had been directly submitted by the contractor, Infosoft
System Sh.p.k., to the contracting authority, the Central Finance and Contracting Unit of the
Albanian Ministry of Finance and Economy, in order to process the final payment.
In your confirmatory application you question the absence of any documents. You refer to a
previous reply by the Directorate-General for Neighbourhood and Enlargement
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Official Journal L 345 of 29.12.2001, p. 94.
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Official Journal L 145 of 31.05.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 229 91111
Negotiations, dated 7 May 2018, in response to an earlier request from you regarding the
same documents, registered under reference number GestDem 2018/2460.
In that reply, the Directorate-General for Neighbourhood and Enlargement Negotiations had
granted partial access to the declaration of origin provided by Infosoft System Sh.p.k.,
which according to your confirmatory application, contained ‘almost the same data’ as the
certificates of origin to which you now request access.
You claim that the European Commission should be consistent in its actions regarding
disclosure. You argue that the European Commission requested the declaration of origin
from the Central Finance and Contracting Unit of the Albanian Ministry of Finance and
Economy despite the fact that the former was not a party to the contract. You allege that the
European Commission did not have the declaration of origin at the time of your request and
therefore had specifically asked for it.
Regarding the declaration of origin that had been previously disclosed to you following your
first request for access to documents GestDem 2018/2460, I would like to point out that in
this case, and contrary to what is the case at hand, the European Commission
was materially
in possession of the above-mentioned document. As the Central Finance and Contracting
Unit of the Albanian Ministry of Finance and Economy is the holder of the declaration, and
was therefore the ‘third-party author’ of the document held by the Commission in the
meaning of Article 4(4) of Regulation 1049/2001, it was duly consulted on the question
whether access could be granted to this document.
Following its agreement, the document was subsequently partially disclosed. Therefore,
contrary to what you argue in your confirmatory application, I note that the procedure for
access to documents held by the European Commission under Regulation 1049/2001 was
duly respected and the actions of the European Commission are coherent with regard to both
the previous request registered under the reference number GestDem 2018/2460 and the
current one.
With regard to your confirmatory application, please note that the European Commission
has carried out a renewed, thorough search for the documents requested, namely the
certificates of origin provided by the company Infosoft System Sh.p.k.
As a preliminary remark, I would like to point out that different ways exist in order to
implement the EU budget or European external aid funds, depending on the variable level of
implication of the European Commission.
Under the indirect management mode, which was applicable for the tender procedure in
question, the European Commission has the power to entrust budget implementation tasks,
such as the conclusion of contracts and their operational and financial management, to different
entities, like partner countries or bodies designated by them. The role of the European
Commission in this case is to either carry out
ex-ante or
ex-post control. Please note that the
contract in question has already been subject to
ex-ante control.
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As the final payment will consequently not be subject to an additional
ex-post control, the
European Commission has not received, and is not expected to receive, the certificates of
origin that are the subject of your request for access to documents. Indeed, these documents
have been sent by the contractor, Infosoft System Sh.p.k., directly to the contracting
authority, which for this specific tender procedure is the Central Finance and Contracting
Unit of the Albanian Ministry of Finance and Economy. Hence, the latter is the holder of the
documents and should normally be in possession of them.
In its reply to your request GestDem 2018/2460 from 7 May 2018, the Directorate-General for
Neighbourhood and Enlargement Negotiations informed you that ‘the certificates of origin
will be available only after the provisional acceptance (delivery of goods), which has not yet
occurred for this contract, as it is still under implementation’. Please note in this respect that
this did not, however, imply any obligation or commitment on the part of the European
Commission to provide such documents and that another analysis of the above-mentioned
statement would amount to a misinterpretation. Furthermore, there is no obligation
incumbent on the European Commission to request the certificates of origin from the
Central Finance and Contracting Unit of the Albanian Ministry of Finance and Economy
solely for the purpose of replying to an application for access to documents.
In light of the above, I confirm that the European Commission does not hold any documents
that would correspond to the description given in your application.
Indeed, as specified in Article 2(3) of Regulation 1049/2001, the right of access as defined
in that regulation applies only to existing documents in the possession of the institution.
Given that the European Commission does not hold any such documents, it is not in a
position to fulfil your request.
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
European Ombudsman under the conditions specified respectively in Articles 263 and 228
of the Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Martin SELMAYR
Secretary-General
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