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:

The requested documents concern the Commission’s proposal for Regulation (EC) No 766/2008, namely the Commission Decision of 22/12/2006 COM(2006) 866 final ‘amending Council Regulation (EC) No 515/97 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters’.

The requested documents regarding COM(2006) 866 are listed below:

1. The documents the lead service drew up in the framework of the inter-services consolations (for example meeting minutes or notes to the attention of Directors-General and other senior officials).

2. The draft text of the proposed Regulation as it stood at the very end of the inter-services consultations.

3. The document(s) setting out the opinions and recommendations of the Legal Services regarding COM(2006) 866, prior to the initiation of the written procedure to duly adopt the proposal for the Regulation.

4. The proposal of the Member of the Commission to the College to adopt the COM(2006) 866.

5. The favourable opinion of the Legal Services (or equivalent document) accompanying the proposal under (4) above.

6. Any other preparatory documents placed at the disposal of the College in the framework of COM(2006) 866.

7. A copy of the day note regarding COM(2006) 866 that was drawn up according to the Commission’s rules of procedure, which appears to be one of the documents SEC(2007)2.

8. A copy of the internal document (drawn up by the
Secretariat-General) accompanying the dispatch of the day note regarding COM(2006) 866 (apparently SEC(2007 2) to the
Directorates-General concerned, as prescribed by the Commission’s rules of procedure and annexes thereto.

9. The documents drawn up by the Commission services, or other concerned third parties (e.g. a Member State), and dispatched to the European Data Protection Supervisor - EDPS by the Commission services regarding COM(2006) 866, including cover letters or equivalent.

10. The internal documents (if any) drawn up by the OLAF Data Protection Officer regarding COM(2006) 866.

11. Any documents drawn up by the Commission services and
dispatched to third parties other than the EDPS (e.g. Member States, Article 29 Data Protection Working Party of Directive 95/46/EC) in the framework of consultations (if any) regarding COM(2006) 866.

The present application is a re-lodge of the application submitted by asktheeu.org directly to OLAF on 25/9/2013. OLAF had not registered the request until the close of business of 4/10/2013 (see http://www.asktheeu.org/en/request/custo...).

I would like to take the opportunity of re-lodging the application to point out that in my view there is an overriding public interest for the full release of all the requested documents. The two foremost reasons are:

1. The requested documents are directly linked with the fundamental right of personal data protection that is enshrined in article 16(1) TFEU.

2. The Customs Information System lies at the juncture of both Regulation No 45/2001 and Directive 95/46/EC. It follows that it is one of the few cases where the Commission services operate an information system in which the personal data processed therein have originated primarily from the Member States.

It also worth recalling that the EU Courts have held that documents directly relating to the adoption of EU legislative acts are to be fully released.

Finally, in my opinion the application does not fall within the ambit of articles 2(1) and (2) of Commission Decision 1999/352. This, in turn, implies that should a confirmatory application be lodged, then the corresponding decision will be adopted by the Secretariat-General and not OLAF.

Yours faithfully,

Mr. Aris KOLIMATSIS

Dear Secretariat General (SG),

I refer to the email of 7/10/2013 of the Transparency Unit, http://www.asktheeu.org/en/request/custo..., informing me about the transfer of the application to OLAF.

Yet 10 working days later OLAF has not registered the initial application. Furthermore, the same application was lodged directly with OLAF on 25/10/2013, http://www.asktheeu.org/en/request/custo..., and because OLAF had been silent then, the application was submitted this time to the Secretariat-General. Nearly a month after 25 September the application is back to square one.

Since OLAF has apparently dragging its foot, it is appropriate to point out that according to article 10 of Commission Decision 937/2001 requests #3 and #5 are to be handled by the Legal Services and #7 & #8 by the Secretariat-General.

Furthermore, the documents in question are solely about a Commission Decision, a significant aspect of which is directly and extensively concerned with the fundamental right of personal data protection, and not about OLAF's investigations pursuant to Regulation No 1073/1999. The documents in question are some kind of run-of-the-mill documents, for which there is an overriding public interest for their full release, due to their close link with the personal data protection. All this boils down in the observation that there is not much work for OLAF in thoroughly checking the documents for a possible application of an article 4 of Regulation No 1049/2001 exception. Consequently, the delay in registering the initial application cannot be comprehended.

I would therefore be obliged if the Transparency Unit would forward this email to OLAF.

Yours faithfully,

Mr. Aris KOLIMATSIS

Dear Secretariat General (SG),

It appears that OLAF has failed to acknowledge the registration of my application, in spite of one month having run since the transfer of the request to OLAF.

I would appreciate if the Secretariat-General would let me know what exactly I am supposed to do to prompt OLAF to register my application.

Yours faithfully,

Mr. Aris KOLIMATSIS

Dear Secretariat General (SG),

This email is sent for the purposes of complying with the transparency principle of asktheeu.org. It quotes an email send to OLAF from my private email account kindly requesting the intervention of OLAF's Director-General such that OLAF register my application.

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

Date: Wed, 20 Nov 2013 09:57:12 +0000
Subject: OLAF's excessive delays in registering an application according to Regulation 1049/2001, Customs Information System
From: [email address]
To: [email address]
CC: [email address]; [email address]; [email address]; [email address]

Dear Sir,

This is to kindly request your intervention such that OLAF complies with its obligations under Regulation 1049/2001.

The following paragraphs set out a history of my applications.

On 25 September I submitted an application via asktheeu.org to OLAF for several documents concerning the Commission’s proposal for Regulation No 766/2008, namely the Commission Decision of 22/12/2006 COM(2006) 866 final ‘amending Council Regulation (EC) No 515/97 … correct application of the law on customs and agricultural matters’.

Because by 5 October OLAF had not registered my application, I withdrew my application stating that I would re-submit it via the Secretariat-General, http://www.asktheeu.org/en/request/custo....

On 5 October I submitted a fresh application with the Secretariat-General; on 7 October the latter informed that it had transferred the application to OLAF, http://www.asktheeu.org/en/request/custo....

On 22 October 2013 I made enquiries with the Secretariat-General, http://www.asktheeu.org/en/request/custo... about the status of the application registration, which was not answered.

On 7 November I wrote to the Secretariat-General requesting advice on how I would be able to ‘persuade’ OLAF to register my application, which was again not answered. .

According to the public records of asktheeu.org, the sole response of the Commission services so far is the Secretariat-General email of 7 October.

Because OLAF has responded to other requests via asktheeu.org (for instance ARES(2013)3217287 http://www.asktheeu.org/en/request/exter...), it is entirely inexplicable why OLAF has treated my application in this particular way.

Given that OLAF has been totally silent, one starts wondering whether there is something very peculiar with the legal basis of the Customs Information System, or whether the Commission services do not wish to disclose the requested documents because they will show that in other areas of activities the Commission services had ‘forgotten’ what they did with the latter system.

In view of the above I would be obliged if OLAF would promptly register my application.

This email will be also sent via asktheeu for the purposes of transparency. The correspondence regarding the application is to be exchanged via asktheeu.org.

Sincerely yours,

Mr. Aris KOLLIMATSIS

Copies to:
European Ombudsman
OLAF Head of Legal Affairs Unit
OLAF Data Protection Officer
Secretariat-General, Transparency Unit

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

Yours faithfully,

Mr. Aris KOLIMATSIS

Dear Secretariat General (SG),

This is confirmatory application pursuant to articles 7 and 8 of Regulation 1049/2001.

My application in accordance to Regulation 1049/2001, that is to say the exercise of a citizens' right according to the Charter of the Fundamental Rights of the EU and enshrined in the said Regulation, have fallen on OLAF's deaf ears. Even my email to the OLAF Director-General was apparently ignored. More than 30 working days have run since the submission of the application, which OLAF has not yet acknowledged.

As it was stated in my email of 22 October, according to article 10 of the Commission Decision 937/2001 requests under (3) and (5) were to be handled by the Legal Services, and requests under (7) and (8) by the Secretariat-General. Requests under (9) - (11) are directly concerned with the fundamental right of personal data protection for which full transparency is the norm.

Failing to register an application under Regulation 1049/2011 concerning a Commission Decision, in spite of 30 working days having elapsed and ignoring reminders, is literally unheard of. That many of the requested documents concern the fundamental right of personal data protection makes the whole matter truly extraordinary.

The Secretariat-General is obliged to have due regard to the above and promptly handle the confirmatory application.

If an applicant were to wait for several months until an administrative department had decided to register the initial application, then such a practice would effectively circumvent several provisions of Regulation 1049/2001. One fundamental principle of that Regulation is the public's swift access to documents held by Institutions.

Finally, it is reiterated what was stated in the last paragraph of the application of 5 October: The the application does not fall within the ambit of articles 2(1) and (2) of Commission Decision 1999/352, and consequently according to article 10 of the Commission Decision 937/2001 the Secretariat-General has the sole responsibility to provide the response to the confirmatory application.

Yours faithfully,

Mr. Aris KOLIMATSIS

Dear Secretariat General (SG),

This is to kindly drawn your attention that the registration of my confirmatory application of 29 November had not been acknowledged yet.

I am confronting a situation in which an application under Regulation 1049/2001 concerning a proposal of the Commission for EU legislation has not even been registered after three months have run since its lodging via email !!!!!!

Unless the Secretariat-General acknowledge the registration of the confirmatory application without further delays, I will escalate the matter with the Commission, the Ombudsman, the EDPS, Members of the European Parliament and National Authorities.

Perhaps the risk of the resulting acute embarrassment might persuade the Secretariat-General to comply with Regulation 1049/2001 in this instance.

Yours faithfully,

Mr. Aris KOLIMATSIS

Dear Secretariat General (SG),

First of all, I would like to thank OLAF for the initial response to the application under Regulation 1049/2001 concerning the proposal COM(2006) 866, Ares(2014)248423 - 03/02/2014 and annexes thereto.

Pursuant to article 7(2) of Regulation 1049/2001 a confirmatory application is submitted for the documents under requests #1, #3, #4, #6, #8, #9, and #11.

The justification of the confirmatory application is that it appears that OLAF did not identity and release several documents. Although it is impossible to establish with absolute certainty that the non-identified documents are indeed held, nevertheless common sense and a basic understanding of how proposals were adopted by the Commission’s written procedure suggest that the Commission services hold documents about COM(2006) 866 that were not released in the initial response.

The following paragraphs analyse the OLAF initial response for every single request of the confirmatory application.

Request #1

OLAF released as Annex 1 the document dated 10 May 2006, document reference number D/03861, which is a 2-page cover note dispatching the draft text of the proposal to several Directorates-General (DGs). However, OLAF did not released the annex to the letter ‘Projet de proposition de règlement’.

There are some 15 DGs to which the OLAF document D/03861 was dispatched. Presumably, all these DGs had participated in the inter-services consultations. At least a few of them would have drawn up a few lines about their views prior to 10/6/2006. Yet OLAF did not identify a single document of the kind ‘observations and position of DG X on the inter-services consultations …’.

The released Annex 2 (proposed text as it stood at the end of the inter-services consultations) is dated 22/12/2006. In the 6 months between the dispatch of the first proposal and the finalization of the text, it must be presumed that documents were drawn up and exchanged between the DGs in the form of emails, notes to file, and entries in the application used since 2001 for inter-services consultations. Again, OLAF did not identity a single document of this kind.

In my view, the document with which OLAF opened the inter-services consultations is also to be released.

It must be inferred that OLAF did not release several of the documents the Commission services hold.

Request #3

Reading the initial response to request #3 in conjunction to that of request #5, the Legal Services drew up a single document during the whole process that culminated to the proposal COM(2006) 866, starting from the very beginning of the inter-services consultations right to the submission of the favourable opinion JUR (2006) 30317 CL.

Consequently, it must be inferred that during the inter-services consultations the Legal Services was totally silent. This begs the question which particular DG has been advising OLAF on the important legal issues as regards Regulation 45/2001 vis-à-vis the Customs Information System (CIS). This issue is even more puzzling, since at the material time OLAF had not appointed a Data Protection Officer.

It is not reasonable to expect that in a proposal at the juncture of Directive 95/46/EC and Regulation 45/2001 the Legal Services took a back seat. Consequently, it is argued that OLAF did not identify and release documents drawn up by the Legal Services.

Request #4

OLAF released Annex 4, which the proposal COM(2006) 866 itself, and NOT the proposal of the Commissioner to the College that was requested. I understand that the proposal in question is a document bearing the name of the Commissioner, stating clearly that the document is drawn pursuant to the Commission’s rules of procedure for a decision under the written procedure. Annex 4 might have been an annex to the document at issue.

In fact, as it is discussed below, Annex 5 appears to be a preliminary draft of the requested proposal of the Commissioner.

It must be inferred that OLAF did not release the requested document.

Request #6

OLAF released Annex 5. There is no date or a document identifier therein. The text of the document suggests that it is some kind of a draft of the Commissioner’s proposal to adopt COM(2006) 866, since in page 2 it is stated ‘4. The Commission is requested to adopt the proposal for a Regulation….’.

Request #8

The document OLAF released is NOT a document drawn up by the Secretariat-General; it is an OLAF document that cannot be the requested document. Therefore, it cannot be considered as falling under the scope of request #8. Essentially, OLAF did not provide access to the requested document.

Request #9

OLAF released as Annex 8 the document dated 25/5/2006, D04297, which is a cover letter addressed to the EDPS. OLAF did not release the draft text of the proposal that it dispatched to the EDPS, even though that document falls under the scope of the request.

Moreover, it cannot be excluded that OLAF further drew up documents that it dispatched to the EDPS subsequently to 25/5/2006, perhaps in response to questions or suggestions of the EDPS.

Request #11

From the released document it emerges that the Commission services did NOT seek at all the opinion of the Member States prior to the adoption of COM(2006) 866. Having due regard to the functioning of the CIS, one would expect that the Commission services would have sought to solicit some kind of a view from the Member States, precisely because all the personal data are collected in the territory of a Member State.

Concluding remark

The above analysis suggests that OLAF did not identity all relevant documents. It is expected that the Secretariat-General will review the initial response in the light of the foregoing analysis.

Yours faithfully,

Mr. Aris KOLIMATSIS