ERCEA compliance with Regulation 45/2001, overriding public interest to release documents

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Dear European Research Council Executive Agency (ERC Executive Agency),

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. IDENTIFICATION OF DOCUMENTS

The existence of the documents is established by the contents of the ERCEA Annual Report 2012 and the stipulations of Regulation 45/2001.

Page 33 of the Report reads:

"Stage four: Ex post controls
... ERCEA specific ex post control approach: “Corrective strand”, audits on ERC beneficiaries’
financial statements (conducted on the spot by the Agency’s own staff, outsourced to audit
firms and in some cases jointly with the European Court of Auditors)".

Copies of the following documents are kindly requested:

1. The documents setting out the 'Corrective strand' of the audits

2. The documents of the kind "FP7 Audit Manual" and "FP7 Audit Process Handbook" or equivalent

3. In case the documents under (2) were also held by the audit firms, irrespective of the administrative department or Institution that handed a copy thereof to the audit firms, the documents dispatching the "Manuals" and "Handbook" to the audit firm.

4. The letters with which ERCEA informed ERC beneficiaries the conduct of an on-the-spot audit by it own staff including all annexes

5. The letters with which ERCEA informed ERC beneficiaries the conduct by an audit firm of an on-the-spot audit including all annexes

6. The letters with which ERCEA informed ERC beneficiaries the conduct of an on-the-spot audit jointly by the its own staff the European Court of Auditors including all annexes.

7. The prior notification of article 25 of Regulation 45/2001 concerning the ERCEA audits referred to in the 2012 Annual Report, which should predate the Report, as well as all annexes.

8. The document(s) expressly stipulated in article 23(2)(a) of Regulation 45/2001 with the instructions of ERCEA to the audit firm(s).

9. The document(S) establishing a legally binding relationship between ERCEA and the audit firm(s) according to article 23(c) of Regulation 45/2001.

10. Regarding the audits in which the European Court of Auditors participated, the copies held by ERCEA concerning the correspondence between the Court and the National Audit Organisations in accordance to article 287(3) TFEU.

11. Copies of ten (10) documents with which ERCEA complied with article 12(1) of Regulation 45/2001, that it is to say it informed data-subjects (researchers) about the processing of their personal data ERCEA obtained form a third party (auditee, FP7 beneficiary). ERCEA is to select any 10 out of many. The parts of the documents disclosing the data-subject identity are to be redacted.

Page 37 of the Report reads:

"The 2011/2012 ERCEA Fraud prevention and detection Action Plan covered fourteen actions out of which three were completed in 2012, in particular, the setting up of an IT tool for copy detection during the approval of scientific reports and the access and use of the Daisy/Charon database for uncovering of EU double-funding".

Copies of the following documents are kindly requested:

12. The ERCEA 2011/2012 Fraud prevention and detection Action Plan

13. The ERCEA administrative act(s), or equivalent, adopting the use of Daisy/Charon within ERCEA

14. The authorisation of the ERCEA official(s) who adopted the act about the Daisy/Charon

15. Every single document held by the ERCEA regarding Daisy/Charon. This includes end-user manuals, system administration manuals, interfacing Daisy/Charon with other information systems at ERCEA and the Research DGs and so on.

The top of page 38 reads:

"IAO Issued final audit report on the evaluation of proposals in March 2012 ... notification to the EDPS as a result of which the new deadline is June 2013"

Copies of the following documents are kindly requested:

16. The IAO audit report

17. The draft audit procedure relating to the monitoring of experts performance.

18. The correspondence of ERCEA with the EDPS

19. In the event the audit procedure is finalised, a copy of it.

II. OVERRIDING PUBLIC INTEREST

The ERCEA audits were pursuant to a contractual provision of the FP7 grant agreements, that is to say a private law contract. Without the express consent of the data subject, none of the conditions of article 5 of Regulation 45/2001 is fulfilled. Consequently, the ERCEA personal data processing might be outright illegal.

The applicant draws the attention of the ERCEA of the recent emergence in full public view in asktheeu.org of the grave illegalities of the Research family DGs in their external financial audits. There are approximately two dozens of application under Regulation 1049/2001 submitted to DG RTD and DG CNECT in asktheeu.org, http://www.asktheeu.org/en/body/dg_rtd and http://www.asktheeu.org/en/body/dg_cnect, exploring various different aspects of the illegalities.

The high mark of the illegalities is found in the prior notifications DG ENTR DPO-3338.1, DG INFSO DPO-3338.1, DG RTD DPO-3398.1 and DG MOVE DPO-3420.1, specifically the false statements "This processing has been submitted to the EDPS who concluded that article 27 is not applicable" and "3. Subcontractors -" and their non-existent legal basis.

The ERCEA audits have followed the path of the Research DGs. Consequently, the public is entitled to scrutinise the legality of the ERCEA external financial audits.

For the purpose of scritinising ERCEA's conformance to legality, the full release of the documents, except personal data (researchers, contact persons of beneficiaries, and officials), is absolutely necessary.

The public must have confidence in that executive agencies strictly observe legality, for otherwise doubts will be engendered in the minds of the citizens about the sound administration of the considerable amount of taxpayers' money entrusted to ERCEA to manage.

Yours faithfully,

Mr. Akis NASTAS

Dear European Research Council Executive Agency (ERC Executive Agency),

Earlier today I submitted via the form at your website, http://erc.europa.eu/send-us-message, a reminder that the ERCEA has not registered my application under Regulation 1049/2001 that was submitted via asktheeu.org on the 30th of November.

For the purposes of full transparency, this is to provide a copy of an email I just received from the ERCEA.

I have redacted the details of my private email address.

*********

From [email address]
To: akis.nastas@[non-disclosed information ]
Date: Sun Dec 15 12:52:33 2013

Subject: Thank you for submitting your request

-Topic: Public access to documents

-Your title: Mr.

-Your first name: Akis

-Your last name: NASTAS

-Your email: Akis.NASTAS@[ non-disclosed information ]

-Subject: Access to Documents, Regulation 1049/2001
Message: Dear European Research Council, On 30 November I submitted via the public asktheeu.org website an application under Regulation 1049/2001, http://www.asktheeu.org/en/request/ercea.... The Council has not yet acknowledged the registration of the application. I would be obliged if the Council would reply to the email of 30 November 2013; the sender of the email is an email account from asktheeu.org organisation. Please do not reply do the email address indicated in this form. Instead reply to the email from asktheeu.org

*********

Yours faithfully,

Mr. Akis NASTAS