DG INFSO ICT for Health managed projects, external financial audits, FP6 & FP7 programmes, personal data protection

La réponse à cette demande est très en retard Réseaux de communication, contenu et technologies (CNECT) aurait déjà dû répondre à la demande (détails). Vous pouvez vous plaindre en Solliciter une révision interne .

Dear Communications Networks, Content and Technology (CNECT),

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 application concerns RTD actions managed by the former DG INFSO ICT for Health Unit and its successor of DG CNET. For the sake of brevity, the application refers to the ICT for Health Unit only.

A. ICT for Health Unit managed projects, external financial audits announced form 1/1/2008

The former DG INFSO S.5 Unit and the DG CNET R.4 Unit ‘Compliance’ have notified FP6 contractors and FP7 beneficiaries for an external financial audit pursuant to articles FP6.II.29 and FP7.II.22.

The application concerns the full release of the following documents drawn up from 1/1/2008 and thereafter, and for each single external financial audit of projects managed by the former ICT for Health Unit:

1. A copy of the audit announcement letter

2. A copy of the annexes to the audit announcement letter, including the Privacy Statement

3. The letters with which DG INFSO or DG CNET, as the case may be, instructed the external auditor-contactor to carry out a field audit. Such audits have been approximately 75% of all audits.

B. ICT for Health Unit managed projects, audit reports

For audits carried out by Commission staff only (not necessarily DG INFSO staff), is some cases the DG INFSO – DG CNET final audit report documents the finding that according to DG INFSO the FP6 contractor or the FP7 beneficiary breached one or more contractual provisions.

4. The application concerns the partial release of the final audit reports drawn up from 1/1/2009 for projects managed by the former ICT for Health Unit, and in particular the few passages about the DG INFSO – DG CNET finding of a breach of contract.

C. ICT for Health Unit managed projects, termination for breach of contract

On the basis of the findings of an external financial audit, in some occasions DG INFSO terminated the participation of the FP6 contractor or the FP7 beneficiary for breach of contract.

The application concerns the full release of the following documents drawn up from 1/1/2009 and thereafter, and for each single external financial audit of projects managed by the former ICT for Health Unit:

5. For each single termination of participation, a copy of the DG INFSO – DG CNET ‘first’ letter with which DG INFSO – DG CNET notified a FP6 contractor or FP7 beneficiary the termination of its participation in the action for breach of contract and invited the contractual counter-party to submit observations, including all annexes thereto.

6. For each single termination of participation, a copy of the DG INFSO – DG CNET ‘final’ letter with which DG INFSO – DG CNET notified a FP6 contractor or FP7 beneficiary the termination of its participation in the action for breach of contract, including all annexes thereto.

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

IDENTITIES OF CONTRACTORS-BENEFICIARIES AND THE RTD ACTION

The Commission services may consider the withholding of the identities of the FP6 contractors, the FP7 beneficiaries and the RTD action. The following paragraphs set out some considerations about it. Unless stated otherwise, articles referred to are those of Regulation No 1049/2001.

I. Article 4(2) first indent ‘commercial interest’

1. For legal persons that have brought an action before the General Court (e.g. T-552/11 Lito Hospital v Commission) the requested information is lawfully in the public domain, so the corresponding documents applied for are to be fully released.

2. Breach of contract, even in a context of a private law contract between the two parties, is not a trivial matter. The contractors-beneficiaries received Union funds to carry out an action that indirectly would benefit the Union. This is the very purpose of the public funding. Relying on article 4(2) first indent ‘commercial interest’ to withhold the identity of the action or the contractor-beneficiary is highly questionable, since protecting the disclosure of the breach is not, arguably, worth protecting.

3. There are several Commission Decisions about recovery of amounts unduly paid to contractor-beneficiaries such as C(2013)3869/F, C(2011)10039/F, C(2011)7640/F, and C(2008)6782/F (downloadable from the public register of Commission documents). Such Decisions are routinely released pursuant to an application according to Regulation No 1049/2001. If article 4(2) first indent is not applicable to those Decisions, equally it is not applicable to the requested documents.

It can therefore be concluded that the Commission services may not rely on article 4(2) first indent ‘commercial interests’ to withhold the identity of the contractor-beneficiary or the action.

II. Article 4(2) third indent ‘protection of the purposes of audits’

Apparently, the Commission services are very fond of this provision, since they have invoked it very often to refuse the release of documents about the external financial audits of the Research family DGs. The following observations are made:

1. Article 18(3)§1 of Regulation No 2321/2002 ‘FP6 rules of participation’ provides ‘The Commission, or any representative authorised by it, shall have the right to carry out scientific, technological and financial audits………..’

2. Article 19(10) of Regulation No 1906/2004 ‘FP7 rules of participation’ provides ‘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’. Interestingly, there is no provision about financial audits per se in that Regulation. While it may be argued that ‘financial control’ entails financial audits, the very use of the term ‘financial control’ instead of ‘financial audit’ is in itself striking.

3. Article 57(2) of Regulation No 1605/2002 (Financial Regulation), as amended, expressly prohibits the outsourcing to private sector entities the exercise of ‘public authority’ or the exercise of discretionary powers of judgement.

4. External auditors-contractors have carried out approximately 75% of the DG INFSO – DG CNET external financial audits.

5. In the FP6 contract and FP7 grant agreement the Commission does not rely on its prerogatives of a public authority.

6. The audits are carried out pursuant to the contractual stipulations of articles FP6.II.29 and FP7.II.22 and not pursuant to Union law.

7. The substance of any measure by an Institution is not affected at all by the wording or the terms used to describe it. What counts is the substance only.

8. The protection of the purposes of audits of article 4(2) third indent concerns audits pursuant to Union law, and not contractual measures pursuant solely to stipulations of private law contracts. Equating a contractual audit to an audit as an administrative procedure pursuant to Union law in order to rely of article 4(2) third indent is not compatible with the intentions of the EU legislature. Even with special legal advice, it is not possible to foresee that contractual measures whose appellation is ‘audit’ are an ‘audit’ within the meaning of article 4(2) third indent.

9. Taking a cue from the ‘financial control’ of the aforesaid article 19(10)- FP7 rules of participation, it can be argued that the contractual measures of articles FP6.II.29 and FP7.II.22 are ‘financial controls’ and thus not ‘audits’ covered by article 4(2) third indent.

The above considerations conclusively prove that the audits pursuant to articles FP6.II.29 and FP7.II.22 are not audits within the meaning of article 4(2) third indent.

Moreover, article 4(2) third indent protects the ‘purposes’ of the audits and not the audits per se. The purpose of an audit is completed when the final audit report is drawn up and dispatched to the contractor-beneficiary. Even if there is a margin of some months, it cannot be argued that that margin can be extended beyond a year. In this context, it is worth recalling that OLAF routinely releases final case reports, where the names of natural persons are redacted, and depending on the particularities, the names of legal persons also.

III. Article 4(3) ‘decision making process’

The dispatch of the final audit report is by itself the expression of the DG INFSO – DG CNET final position, which means that a ‘decision’ has been adopted.

The Commission services cannot credibly argue that partially or fully releasing the requested documents will seriously undermine the decision making process of yet-to-be-adopted decisions about external financial audits.

IV. Article 4(1) fourth indent ‘public interest as regards the financial, monetary or economic policy of the Community’

In view of the considerations of points 1 to 9 of section II above, the Commission services cannot credibly argue that contractual measures, carried out in 75% of the cases by external auditors-contractors, and in an context where the Commission does not rely on its prerogatives as public authority, concern, even remotely, this particular public interest.

Furthermore, the two false statements in DG INFSO DPO-3338.1 ‘This processing has been submitted to the EDPS who concluded that Article 27 is not applicable’ and ‘3. Sub-Contractors —’ necessarily preclude any reliance on the ‘public interest’ to refuse access. By definition, the Commission services cannot rely on a ‘public interest’ clause to refuse access to documents pursuant to Regulation No 1049/2001, whilst the very documents applied for were drawn up in a processes tainted by numerous and serious breaches of Union and national law on the fundamental right of personal data protection. It can even be argued that in doing so the Commission services have inflicted damage to the public interest.

V. Conclusions

The Commission services may not rely on any exception of article 4 of Regulation No 1049/2001 to refuse total access and as applied for herein, except article 4(1)(b) and redact the relatively few words disclosing the identities of natural persons. All other parts of the documents applied for are to be fully released.

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

OVERRIDING PUBLIC INTEREST

Reference is made to the following extract from an application in asktheeu.org, http://www.asktheeu.org/en/request/prese...

“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”.

The requested documents will enable the further scrutiny of the lawfulness of the DG INFSO – DG CNET external financial audits.

The disclosure of the identities of the contractors-beneficiaries will make possible to alert them to the numerous breaches of Union and national law the external financial audits have entailed. The reimbursement of the ostensibly ‘unduly’ paid amounts is, in fact, the fruit of a poisonous tree, namely the gravely unlawful external financial audits, which are marred by false declarations of public officials in statutory instruments.

While it is true that so far in disputes before the General Court about FP6 and FP7 actions the applicants have not raised pleas about personal data protection, this does not mean that they will not do so in the future. The only exception is the Case T-312/10, ELE.SI.A v Commission, where the applicant raised such a plea in the hearing. Whilst the Court dismissed the ELE.SI.A plea of personal data protection, apparently on the grounds that it was not well formulated to be amenable for examination by the Court, it is certain that ELE.SI.A was not aware about the false declarations of DPO-3338.1, and thus it did not alert the Court.

After all, who would have suspected that two false declarations would have been inserted in DPO-3338.1 barely a few months after the Schecke Judgement of the Court of Justice. That the acts of Institutions are presumed to be legal means that everybody had assumed that the external financial audits have been lawful.

Due to the extraordinary nature of the illegalities, it can even be argued that the DG INFSO – DG CNET external financial audits never existed in the Union legal order.

In sum, not only the Commission services cannot rely on the article 4 exceptions of Regulation 1049/2001 to refuse access, but there is also an overriding public interest for the full release of the documents applied for.

Yours faithfully,

Mr. Akis NASTAS

Réseaux de communication, contenu et technologies (CNECT)

Dear Sir:

Thank you for your email dated 15 July 2013, registered today under the reference Gestdem 2013/3687.

I hereby acknowledge receipt of your request for access to documents.

In accordance with Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, you will receive a response to your request within 15 working days. The time limit will expire on 05 August 2013. In case this time limit needs to be extended, you will be informed in due course.

Yours sincerely,

Priscille Schiltz
European Commission
SG B5 – Transparency
'Access to documents'
B-1049 Brussels/Belgium

Afficher les sections citées

EC ARES NOREPLY, Réseaux de communication, contenu et technologies (CNECT)

1 Attachment

Dear Sir,
Please find attached document Ares(2013)2831024 concerning "Your application for access to documents – Ref GestDem No 2013/3687. Fair solution to address your application (Article 6 of Regulation 1049/2001)" sent by Ms ENGELBOSCH Katleen on 05/08/2013.
Kind regards.

-------------------------------------------------------------------------------------------------------------
Note: This e-mail was automatically generated by the European Commission's central mail registration system.
Replies by e-mail must be addressed to the original sender ENGELBOSCH Katleen (mailto:[email address]).
Remarque : Cet e-mail a été généré automatiquement par le système d'enregistrement central du courrier de la Commission européenne.
Toute réponse éventuelle par e-mail doit être adressée à l'expéditeur en personne, à savoir ENGELBOSCH Katleen (mailto:[email address]).

Dear Communications Networks, Content and Technology (CNECT),

Referring to the DG CNET document Ares(2013)2831024 - 05/08/2013, this is to provide the applicant’s preferred order of priority for handling the documents of application GestDem 2013/3687.

The priority is set out below in decreasing order of preference. For the sake of clarity, part of each initial request is also quoted.

1. “Request (1): A copy of the audit announcement letter”. The letter(s) – if any - DG INFSO or DG CNET may have already released pursuant to other, earlier applications in accordance to Regulation No 1049/2001. It is noted that according to the provisions of article 9(2) of the Commission Decision 2001/937 (EC, ECSC, Euratom), Official Journal L 345/94 of 29.12.2001, “The following documents shall be automatically provided on request and, as far as possible, made directly accessible by electronic means (…..) (e) documents already disclosed following a previous application” DG CNET is under an absolute obligation to release such documents without the slightest delay. It is further noted that conceivably a DG INFSO/CNET audit announcement letter may have informed a FP6 contractor – FP7 beneficiary the audit of several research projects, only a few – or even a single one – were managed by the former ICT for Health Unit (or its DG CNET successor). Any audit announcement letter that concerned inter alia at least one FP6/FP7 action of the former ICT for Health Unit falls under the scope of priority #1.

2. “Request (3): The letters with which DG INFSO or DG CNET, as the case may be, instructed the external auditor-contactor to carry out a field audit (…)”: The letter(s) – if any - corresponding to the audits with priority #1 above, that is to say the audits for which DG INFSO or DG CNET may have already released the audit announcement letters pursuant to other, earlier applications according to Regulation No 1049/2001.

3. “Request (2): A copy of the annexes to the audit announcement letter, including the Privacy Statement”: The annex e(s) – if any - DG INFSO or DG CNET may have already released pursuant to other, earlier applications according to Regulation No 1049/2001. The observation about the aforesaid article 9(2)(e) fully applies to the documents under the initial request #2.

4. “Request (4): The application concerns the partial release of the final audit reports drawn up from 1/1/2009 (…)”: The audit reports as regards audits for which an action was brought before the Court of First Instance or the General Court (e.g. case T-165/13 Talanton v Commission) pursuant to the arbitration clause of the FP6 model contract and the FP7 model grant agreement.

5. “Request (6): For each single termination of participation, a copy of the DG INFSO – DG CNET ‘final’ letter with which DG INFSO – DG CNET notified”: The letters corresponding to audits for which n action was brought before the Court of First Instance or the General Court pursuant to the arbitration clause of the FP6 model contract and the FP7 model grant agreement.

6. “Request (5): For each single termination of participation, a copy of the DG INFSO – DG CNET ‘first’ letter with which DG INFSO – DG CNET notified (….)”: The letters corresponding to audits for which n action was brought before the Court of First Instance or the General Court pursuant to the arbitration clause of the FP6 model contract and the FP7 model grant agreement.

7. The documents falling under the scope of request #1 of the initial application and not falling under priority #1 above.

8. The documents falling under the scope of request #3 of the initial application and not under priority #2 above.

9. The documents falling under the scope of request #2 of the initial application and not under priority #3 above.

10. The documents falling under the scope of request #4 of the initial application and not under priority #4 above.

11. The documents falling under the scope of request #6 of the initial application and not under priority #5 above.

12. The documents falling under the scope of request #5 of the initial application and not under priority #6 above.

I remain at your disposal for any additional information or clarification that may be required.

Yours faithfully,

Mr. Akis NASTAS

Dear Communications Networks, Content and Technology (CNECT),

Referring to the application pursuant to Regulation No 1049/2001 Gestdem 2013/3687 and at the request of DG CNECT (Ares(2013)2831024 - 05/08/2013), on the 6th of September the applicant informed DG CNECT his proposed/preferred priority order for releasing documents. DG CNECT had undertaken to examine and release documents in batches, taking into account the applicant's preferred order.

The publicly visible records of asktheeu.org on Gestdem 2013/3687 show that DG CNECT has not informed the applicant so far about the status of the application, which is an infringement of Regulation No 1049/2001 since more than 15 working days have elapsed since 6/9/2013.

It is therefore kindly requested that DG CNECT inform the applicant without delay about the status of the initial replies.

Yours faithfully,

Mr. Akis NASTAS

Réseaux de communication, contenu et technologies (CNECT)

1 Attachment

Dear Mr Nastas,

 

Your e-mail below has been duly forwarded to DG CONNECT in order to give a
right follow-up to your above mentioned request.

Yours sincerely,

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

 

Afficher les sections citées

Réseaux de communication, contenu et technologies (CNECT)

1 Attachment

Dear Mr Nastas,

 

Please, in our reference, read "GestDem 2013-3687" in place of "GestDem
2013-3867".

I am sorry for the confusion.

Yours sincerely,

 

Paul SIMON
European Commission - Secretariat General
Unit SG.B.5, Transparency

Afficher les sections citées

Dear Communications Networks, Content and Technology (CNECT),

This is to vigorously complain about the failure of DG CNECT to provide me with some kind of an initial response releasing a single document to the application GestDem 2013/3687 registered on 15/7/2013.

DG CNECT relied on article 6(3) to confer with the applicant on 6 August, Ares(2013)2831024 - 05/08/2013. The applicant provided a preferred priority order on 6 September. Two months on there are no news from DG CNECT.

Unless DG CNECT would shortly release the first few batches of documents, the applicant will write to the Member of the Commission, members of the European Parliament, and other potentially interested third parties about the unacceptable delays of DG CNECT, bringing to their attention what might be the substance causing the delays. Perhaps that, together with a reminder that DG CNECT is an administrative department of the guardian of the Treaties, might persuade DG CNECT to respect regulation No 1049/2001.

Yours faithfully,

Mr. Akis NASTAS

Dear Communications Networks, Content and Technology (CNECT),

I refer to the application of 15/7/2013 GestDem 2013/3687 http://www.asktheeu.org/en/request/dg_in....

The Secretariat-General acknowledged its registration on 15/7/2013 http://www.asktheeu.org/en/request/dg_in....

DG CNECT extended the time limit on 5/8/2013, Ares(2013)2831024 - 05/08/2013.

On 6/9/2013 a preferred priority order was defined by the undersigned, http://www.asktheeu.org/en/request/dg_in....

I sent further emails requesting information about the status of the initial reply on 13/10/2013 and 7/11/2013.

In the framework of handling the application GestDem 2013/3761, http://www.asktheeu.org/en/request/dg_in..., DG CNECT informed me on 25/11/2013:

'It is expected that you will also receive a response to your request Gestdem 3687 by 23 December 2013.'

According to asktheeu.org, DG CNECT has not released a single document so far, even though 7 months have elapsed since the lodging of the application.

I respectfully submit that this is simply unacceptable, especially since a preferred priority order has been defined.

I would therefore be obliged if DG CNECT would promptly inform me the status of the initial reply.

Yours faithfully,

Mr. Akis NASTAS