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

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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 Transport Unit and its successor of DG CNET. For the sake of brevity, the application refers to the ICT for Transport Unit only.

A. ICT for Transport 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 Transport 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 Transport 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 Transport Unit, and in particular the few passages about the DG INFSO – DG CNET finding of a breach of contract.

C. ICT for Transport 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 Transport 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.

D. ICT for Transport Unit managed projects, suspension of a contract

DG INFSO has suspended projects managed by the ICT for Transport Unit following reviews. One example is the FP6-027195 I-WAY that was suspended in the first semester of 2007 and DG INFSO terminated in early 2009.

The application concerns the full release of the following documents drawn up from 1/1/2007 and thereafter, and for each single external financial audit of projects managed by the former ICT for Transport Unit:

7. For each single suspension of a FP6 or FP7 project, a copy of the DG INFSO – DG CNET ‘first’ letter with which DG INFSO – DG CNET notified the coordinator about the suspension of the project and invited the consortium to remedy the problem(s), including all annexes thereto.

8. For each suspension under (7) above and in case DG INFSO – DG CNET lifted the suspension, the letter with which DG INFSO – DG CNET notified the coordinator its decision to allow the continuation of the project.

In case the ‘suspension’ of the project was combined with the notification of the project review results, the review letter and all annexes thereto are to be understood as falling within the scope of the request under (7) above.

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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-312/10 ELE.SI.A Hospital v Commission) the requested information for I-WAY is lawfully in the public domain (i.e. the Judgement of the General Court), so the corresponding documents applied for are to be fully released. Regarding FP7-216480 SMART-VEI, the Commission has adopted Decision C(2012) 4538 final, which, as it appears from the public register of documents (http://ec.europa.eu/transparency/regdoc/...), concerns inter alia SMART-VEI. Applications pursuant to Regulation No 1049/2001 may be lodged to obtain copies of that decision, which implies that information about SMART-VEI is, in principle, subject to a near-full release.

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.

4. Suspension of a contract due to problems found at a project review does in no way affect the ‘commercial interests’ of the participants. Even much larger, multi-billion Euro commercial projects are suspended or delivered later than planned. The development of new commercial aircrafts is a prominent example; the launch of a few large passenger jet plans was delayed for more than a year. In general, the delays or the suspension of a project caused by the very entity(ies) carrying out the project cannot be considered as affecting their ‘commercial interests’.

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.

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OVERRIDING PUBLIC INTEREST

I. Fundamental right of personal data protection

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”.

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.l half a year later than the Bavarian Lager and barely a few months after the Schecke Judgements of the EU 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.

II. Furthering the public interest, unjust enrichment

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.

It can even be argued that the recovery of the ‘unduly’ paid amounts from ELE.SI.A (the FP6-027195 I-WAY coordinator), on account of the ‘problematic’ time-sheets is tantamount of unjust enrichment by the Union. This is outlined below.

In view of the numerous infringements of Community law of the ELE.SI.A external financial audit and the Bavarian Lager and the Schecke Judgements of the Court of Justice, the evidence the Commission services relied on to argue their case before the General Court is inadmissible evidence, in so far it was based on personal data unlawfully in the possession of DG INFSO – DG CNET. Paragraph 12 of the order of the Court of Justice of 23/10/2002 in the Case C-445/00, Austria v Council, reads:

12. It would be contrary to public policy, which requires that the institutions can receive the advice of their legal service, given in full independence, to allow such internal documents to be produced in proceedings before the Court unless such production has been authorised by the institution concerned or ordered by that Court.

By analogy, it would be contrary to public policy to allow personal data of third parties to a FP6 contract to be produced in proceedings before the EU Courts unless the personal data is fully lawfully in the possession of the Institution.

Broadly speaking, relying on personal data of third parties to a FP6 contract that have been unlawfully obtained by DG INFSO – DG CNET is like the following scenario. Consider the case of a company minority shareholder (DG INFSO) who obtained a Court order that an external auditor audit the accounts of the company (external financial audit). Somehow the auditor stumbles across some employment contracts of employees with high salaries. He manages to persuade the company directors to hand over all the employment contracts of the highly paid employees together with the pay-slips. Pursuant to the Court order, the external auditor draws up a report and hands over to the minority shareholder a full copy of the employment contracts, pay-slips and so on he collected at the field audit (the DG INFSO practice). In contravention of the national personal data protection legislation, both the auditor and the company have not informed the employees about the transfer of their personal data to a third party.

Subsequently minority shareholder files a civil action against the company for damages on account that the high salaries do not seem to him reasonable, and as a result the profits of the company were artificially low to the detriment of his interests (DG INFSO final audit reports, debit notes, counter-actins before the General Court). There are four distinct infringements of the national data protection law; the company unlawfully handed over personal data (copies of the documents), the auditor unlawfully obtained them, the auditor unlawfully disclosed them to the minority shareholder, and the last one is in unlawful possession and relied on them for civil action). Since the evidence the minority shareholder is unlawfully in his possession, the national Court will be obliged to disregard it, should a motion be filed to that effect. This means that there is no case before the national Court.

The data subjects may file lawsuits against the company, the auditor and the minority shareholder for violation of their privacy rights. The auditor and the minority shareholder may also be criminally liable in some Member States as unlawful personal data processing for a financial gain may be a criminal offence. The auditor faces another problem if he is referred to the national audit standards body for his professional conduct.

There is also another big danger lurking in case the company provided the auditor with false employment contracts and pay slips, especially if the auditor did not bother to inform the data subjects. The auditor and the minority shareholder would have essentially relied on false documents for their own benefit to the detriment of professional reputation of the unsuspected data subjects. Other civil lawsuits for damages may be filed because of defamation.

There are direct parallels with the above scenario and what has been happening with all the DG INFSO external financial audits, especially the risk-based ones.

That the General Court did not rule on this line of reasoning does not mean that the reasoning is incorrect. It just happened that so far no litigant has raised such pleas before the General Court. Sooner or later, the time will come when the Genral Court will examine such pleas.

There are no-requirements in Union law, or in the FP6 model contract, about time-records. This is expressly stated in the FP6 Audit Manual that the Research family DGs have handed over to their external contractors-auditors and stubbornly refuse to release pursuant to Regulation No 1049/2001.

Provided that a FP6 contractor has fulfilled its contractual obligations laid down in Annex I and Annex II, the Union is obliged to disburse the contractual subsidy. After all, the subsidy is for carrying out the Annex I work and not to subsidise the employment of researchers. The Research family DGs have wanted to have both ways, which is mutually destructive with respect to simultaneously pursuing the two aims, one being subsidising the research results (Annex I) and the other subsidising the research work per se (time records). Typically, research funded by Member States in the Universities and research institutes neither does requires a keeping signed time-sheets down to the level of a single day (as the FP6 & FP7 Guides to Financial Issues ‘recommend’) nor do financial audits entail checking time-sheets.

In sum, introducing extra-contractual ‘requirements’ in a FP6 contract for time records in the total absence of Union law and contractual provisions, and then relying on inadmissible evidence before the General Court (e.g. time-sheets) is, literally, unjust enrichment.

The reliance before the EU Courts by the Guardian of the Treaties on evidence in contravention of article 16(1) TFEU, Regulation No 45/2001, the national personal data protection legislation, the EU Court case law, and also ‘supported’ by the two false statements in DG INFSO DPO-3338.1, makes the whole matter, simply, beyond belief.

Of course, the above analysis is not correct if one were to argue that a only a part of the Union law applies to the FP6 and FP7 programmes, meaning that the consistency and homogeneity of Union law abruptly ends in the realm of the FP6 and FP7 programmes. It remains to be seen if the Commission services will advance such arguments.

III. Conclusions regarding the overriding public interest

One cannot help wondering whether the Research family DGs, as administrative departments and by no way the Commission itself, believe that the FP6 and FP7 programmes are beyond the ‘usual’ Union law, ‘elevated’ to a new ‘autonomous’ legal landscape, where for the purposes of managing the funding of cutting edge research the ‘red tape’ of the Union law and fundamental rights are to be set aside.

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

Dear Sir:

Thank you for your email dated 17 July 2013, registered today under the reference Gestdem 2013/3761.

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 07 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

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EC ARES NOREPLY, Réseaux de communication, contenu et technologies

1 Attachment

Dear Sir,

Please find attached document Ares(2013)2852865 concerning "Your application for access to documents – Ref GestDem No 3761/2013. Fair solution to address your application (Article 6 of Regulation 1049/2001)." sent by Ms ENGELBOSCH Katleen on 08/08/2013.

Kind regards.

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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)2852865 - 08/08/2013, this is to provide the applicant’s preferred order of priority for handling the documents of application GestDem 2013/3761.

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 Transport 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 Transport Unit falls under the scope of priority #1 and is to be fully released.

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 (7): For each single suspension of a FP6 or FP7 project, a copy of the DG INFSO – DG CNET ‘first’ letter with which DG INFSO – DG CNET notified the coordinator about the suspension (...)”: The suspension letters of the FP7-216480 SMART-VEI and the FP6-027195 I-WAY.

5. “Request (8): For each suspension under (7) above and in case DG INFSO – DG CNET lifted the suspension, the letter with which DG INFSO – DG CNET notified the coordinator its decision to allow the continuation of the project”: The letter lifting the suspension of the FP6-027195 I-WAY project.

6. “Request (4): The application concerns the partial release of the final audit reports drawn up from 1/1/2009 (…)”: The audit reports as regards external financial audits carried out to the FP7-216480 SMART-VEI beneficiaries and the FP6-027195 I-WAY contractors. In case the audit reports concern more than one FP6/FP7 projects, only the parts of the reports concerning projects managed by the former ICT for Transport Unit and its DG CNET successor.

7. “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 an action was brought before the Court of First Instance or the General Court (e.g. case T-312/10 ELE.SI.A v Commission) pursuant to the arbitration clause of the FP6 model contract and the FP7 model grant agreement.

8. “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 (e.g. case T-312/10 ELE.SI.A v Commission) pursuant to the arbitration clause of the FP6 model contract and the FP7 model grant agreement.

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

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

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

12. Documents whose priority is not defined above are to be handled in an order of priority that DG CNET sees as that imposing the minimum administrative burden.

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 2013/3761 and at the request of DG CNECT (Ares(2013) 2852865 - 08/08/2013), 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 2013/3761 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

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

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 2013/3761 registered on 17/7/2013.

DG CNECT relied on article 6(3) to confer with the applicant on 8 August, Ares(2013) 2852865 - 08/08/2013. The applicant provided a preferred priority order on 6 September. A request for information on 13 October about the status of the initial response remained unanswered by DG CNECT. Two months on from the 6th of September there has been no information at all from DG CNECT.

Unless DG CNECT would release the first few batches of documents shortly, the applicant will write to the Member of the Commission, members of 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

Réseaux de communication, contenu et technologies

Dear Mr Nastas,

 

With reference to your emails of 13 October and 7 November 2013 addressed
to the European Commission's Secretariat General (Access to Documents),
please be informed that you can expect a first partial reply to your
request Gestdem 3761 by the end of November 2013 and a second and final
follow-up response to your request Gestdem 3761 by 23 December 2013. It is
expected that you will also receive a response to your request Gestdem
3687 by 23 December 2013.

 

The delays are due to the numbers of documents requested, the time we need
to retrieve from the archives the documents which do exist and to analyse
them and the complexity of your request in its totality.

 

With thanks in advance for your understanding,

 

 

Best regards,

Katleen Engelbosch

 

 

 

Katleen Engelbosch

Head of Unit

DG CONNECT

Unit CNECT/R4 - Compliance

 

Dear Communications Networks, Content and Technology (CNECT),

Referring to GestDem 2013/3761 (former ICT for Transport projects), this is to respectfully remind DG CNECT that no document has been released so far, even though in its email of 25 November DG CNECT undertook to provide a first partial reply by the end of November.

I also note the following, which is information lawfully in the public domain.

- The FP6 I-WAY coordinator was audited by an audit firm in 2008.

- The FP7 SMART-VEI coordinator was audited by the external audit Unit of DG INFSO in April 2011

- The Commission adopted a decision imposing a pecuniary obligation to FP7 SMART-VEI beneficiary SESA. This must have stemmed from an audit.

- In May 2011 the Italian authorities alleged that another FP7 SMART-VEI beneficiary had overcharged costs to the project. The Italian press run several reports about the pressing of criminal charges to dozens of individuals.

Moreover, there are strong reasons to believe that many of the FP6 I-WAY contractors and the FP7 SMART-VEI beneficiaries were audited.

Yours faithfully,

Mr. Akis NASTAS

Dear Communications Networks, Content and Technology (CNECT),

I refer to applications Gestdem 2013/3761 and 2013/3687. The former concerns projects managed by the former ICT for Transport Unit and latter projects managed by the former ICT for Health Unit. Both applications were registered by the Secretariat-General on the 17th of July, nearly six months ago.

On 25 November, http://www.asktheeu.org/en/request/dg_in..., DG CNECT undertook to provide a full initial response as regards Gestdem 2013/3761, and stated that on the same date it will provide a response for Gestdem 2013/3687. DG CNECT has been silent, despite seven working days having run.

I would therefore appreciate if DG CNECT would let me know its intentions and plans as regards the two applications.

Yours faithfully,

Mr. Akis NASTAS

EC ARES NOREPLY, Réseaux de communication, contenu et technologies

2 Attachments

Dear Sir,

Please find attached document Ares(2014)67566 regarding "Your application for access to documents – Ref GestDem No 2013/3761 under Regulation 1049/2011 regarding public access to European Parliament, Council and Commission documents – partial reply" sent by Mr Madelin Robert on 14/01/2014.

Kind regards.

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Dear Communications Networks, Content and Technology (CNECT),

This is a confirmatory application under article 7(2) of Regulation concerning the initial reply (partial) of DG CNECT to GestDem No 2013/3761, Ares(2014)67566 - 14/01/2014. It is to be forwarded to the Secretariat-General.

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

Dear Madam, Sir,

A confirmatory application is respectfully submitted for the of DG CNECT initial reply to GestDem No 2013/3761, Ares(2014)67566 - 14/01/2014. It concerns request #4 for which DG CNECT granted partial access to a 208-page PDF documents http://www.asktheeu.org/en/request/685/r....

1. NO ACCESS GRANTED TO THE REQUESTED PARTS OF THE DOCUMENTS

The request specifically requested access to ‘in particular the few passages about
the DG INFSO – DG CNET finding of a breach of contract’. DG CNECT did not provide access even to a single line with a finding that the contractor/beneficiary had infringed a provision of the FP6 contract or the FP7 grant agreement, as the case may be.

Given that the identity of the contractor/beneficiary and the audited projects was withheld, in the face of such extensive redaction of the documents DG CNECT ought to have provided near full-access to the requested parts of the documents.

2. INFRINGEMENT OF ARTICLE 4(6) OF REGULATION 1049/2001

DG CNECT redacted far too much than what is strictly necessary to comply with article 4(1)(b) and 4(2) first indent of Regulation 1049/2001. It follows therefore that DG CNECT infringed article 4(6) by the unjustified redaction of large parts of the documents.

The templates of the audit reports drawn up by DG CNECT follow closely the templates of the reports drawn up of audit firms. The latter templates were included in the framework contracts audit firms have signed with DG RTD; access was granted by DG RTD under GestDem No 2013/3654 as Annexes 11a, 11b, 11c, http://www.asktheeu.org/en/request/671/r....

By comparing the DG RTD audit report templates with the released audit reports it becomes immediately evident that DG CNECT redacted – broadly speaking – at least five times more than what is necessary to comply with article 4(2) first indent. The same conclusion is drawn by examining the table of contents of pages 58-59 of the released Annex 1.

3. SPECIFIC CONSIDERATIONS FOR AUDIT REPORT, PAGES 57 – 125 OF ANNEX 1

Pages 58 – 59 of the released Annex 1 are the table of contents of an audit report.

It is self-evident from that table that over three quarters of that audit report is not covered by the exception of article 4(2) first indent. Consequently, DG CNECT redacted far too much.

The applicant has very strong reasons to believe that the auditee has the LIUN PIC reference 999762026 and that the beneficiary was the addressee of two Commission Decisions pursuant to article 299 TFEU imposing a pecuniary obligation, pertinent details of which are lawfully in the public domain, including the relevant amounts. Since it is very straightforward to lodge a fresh application under Regulation No 1049/2001 requesting the documents under article 9(3)(c) of Commission Decision 937/2001 about these two Decisions, it is suggested that in the interests of procedural economy the Secretariat-General reveal the identity of the auditee.

In such particular circumstances, there is no question that article 4(2) first indent is applicable to any part of that audit report. Consequently, the Secretariat-General is obliged to fully release the report, expect the parts of the report protected by article 4(1)(b).

4. INFRINGEMENT OF ARTICLE 4(2) FIRST INDENT – BREACH OF CONTRACTUAL OBLIGATIONS

The undersigned respectfully takes issue with the DG CNECT premise that an infringement of a contractual obligation established in an audit report is automatically worth of protection article 4(2) first indent affords to the legitimate commercial interests of FP6 contractors and FP7 beneficiaries.

First of all, DG CNECT had established the infringement after the conclusion of a contradictory procedure with the auditee, which means that DG CNECT has complied with the right of defence and the right to be heard.

Secondly, FP6 contractors and FP7 beneficiaries conclude contracts and grant agreements with DG CNECT on their own volition. They are, or ought to be, aware that Regulation 1049/2001 is applicable to all activities of the Commission. If they have had any reservations about the implications of Regulation No 1049/2001 and the protection of their commercial interests, then they could have opted not to become participants in FP6 & FP7.

Thirdly, the Union subsidises RTD actions in pursuit of a general public interest. Beneficiaries of such subsidies are required to fully comply with Union law and the contractual terms. The public has the right to be informed – even to scrutinise – whether beneficiaries put to a good use the subsidies.

Fourthly, the DG CNECT logic of automatically refusing access to the parts of the audit reports establishing a contractual infringement has the undesirable consequence that the graver the infringement, the graver the commercial interest of the auditee that the infringement remains undisclosed, refusing the granting of access under Regulation No 1049/2001. The ultimate logical conclusion is that seriously fraudulent conduct is to be kept secret from the public until there is a public hearing before the Courts, or an authority issues a press release.

Fifthly and lastly, the confidentiality clauses of FP6.II.29 and FP7.II.22 have no bearing on rights enshrined in Regulation 1049/2001 because applicants are not parties to those contracts.

The above arguments cast doubts to what extent infringements of contractual obligations of recipients of research subsidies are automatically to be considered as legitimate commercial interests worth the protection article 4(2) first indent affords.

In any event, withholding the identities of the contractors/beneficiaries and the audited projects will ensure compliance with article 4(2) first indent.

5. CONCLUSIONS

It is expected that in the reply to the confirmatory application the Secretariat-General will grant access to the audit reports redacting only what is necessary to comply with article 4(1)(b) and 4(2) first indent.

Yours faithfully,

Mr. Akis NASTAS

Réseaux de communication, contenu et technologies

Dear Mr Nastas,

I hereby acknowledge receipt of your confirmatory application for access to documents dated 30/01/2014 and registered on 04/02/2014 Ares(2014)265450.

In accordance with Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, you will receive an answer to your request within 15 working days (25/02/2014). In case this time limit needs to be extended, you will be informed in due course.

Best regards,

Bernadett BERCZELI
Access to Documents

European Commission
Secretariat General
Unit SG.B4 – Transparency

Afficher les sections citées

Réseaux de communication, contenu et technologies

2 Attachments

Dr Mr Nastas,
 
Please find attached a note concerning your confirmatory application
GESTDEM 2013/3786.
 
Best regards,
 
Bernadett BERCZELI
Access to Documents
European Commission
Secretariat General
Unit SG.B4 – Transparency
 
 
 
 

Réseaux de communication, contenu et technologies

2 Attachments

Dear Mr Nastas,
 
Please find attached a note for your attention, signed by Ms Marianne
Klingbeil.
 
Best regards,
 
Bernadett BERCZELI
Access to Documents
European Commission
Secretariat General
Unit SG.B4 – Transparency