FP6 & FP7 programmes, calls for proposals, guides for negotiations - financial issues -certifying auditors, personal data protection

La demande est réussie.

Mr. Orestis BEKAS

Dear Research and Innovation (RTD),

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. FP6 CALLS FOR PROPOSALS

Article 9 of Regulation No 2321/2002 – FP6 rules for participation – entitled ‘Submission of proposals for indirect actions’ reads:

“1. Proposals for indirect actions shall be submitted under the terms of calls for proposals. These terms shall be set out in the work programmes.(......) ”

Tens of FP6 calls for proposals expressly requested the submission of ‘short profiles’, i.e. short CVs, that is to say personal data of third parties to the FP6 proposal. The terms of the calls for proposal are completely silent about (i) the legal requirement of the entity submitting the proposal (i.e. the coordinator) to duly notify the data subjects whose short profile has been included into the proposal in accordance with the national law transposing article 11(1) of Directive 95/46/EC, (ii) that the Commission services will comply with Regulation No 45/2001, in particular article 12(1), (iii) that the Commission services have failed to notify the personal data processing operations pursuant to article 28(1) of Regulation No 45/2001.

Copies of the following documents held by the Commission services are kindly requested:

1. The Commission Decision(s) duly adopting the FP6 calls for proposals entailing the aforesaid personal data processing, including their publication in CORDIS.

2. In case the Decisions under #1 were not adopted according to the material Commission’s Rules of Procedure, the official administrative act(s) conferring on senior officials the authority to duly adopt such administrative decisions and the assumption by them of the responsibilities for the lawfulness of those decisions.

3. The documents(s) drawn up by the Research family DGs setting out the lawfulness of the FP6 calls for proposals with respect to Regulation No 45/2001/

4. The documents(s) drawn up by the Research family DGs requesting the opinion of the Legal Services about the lawfulness of the FP6 calls for proposals with respect to Regulation No 45/2001.

5. The documents(s) drawn up by Legal Services in response to request under #4 above.

II. FP6 GUIDES FOR NEGOTIATIONS

Several FP6 Guides for Negotiations expressly requested the submission of ‘short profiles’, i.e. short CVs, that is to say personal data of third parties to the FP6 contracts. These Guides are completely silent about (i) the legal requirement of the entity submitting the proposal (i.e. the coordinator) to duly notify the data subjects whose short profile has been included into the proposal in accordance with the national law transposing article 11(1) of Directive 95/46/EC, (ii) that the Commission services will comply with Regulation No 45/2001, in particular article 12(1), (iii) that the Commission services have failed to notify the personal data processing operations pursuant to article 28(1) of Regulation No 45/2001.

Copies of the following documents held by the Commission services are kindly requested:

6. The Commission Decision(s) duly adopting the FP6 Negotiations Guide entailing the aforesaid personal data processing, including their publication in CORDIS.

7. In case the Decisions under #6 were not adopted according to the material Commission’s Rules of Procedure, the official administrative act(s) conferring on senior officials the authority to duly adopt such administrative decisions and the assumption by them of the responsibilities for the lawfulness of those decisions

8. The documents(s) drawn up by the Research family DGs setting out the lawfulness of the FP6 Guides for Negotiations with respect to Regulation No 45/2001.

9. The documents(s) drawn up by the Research family DGs requesting the opinion of the Legal Services about the lawfulness of the FP6 Guides for Negotiations with respect to Regulation No 45/2001.

10. The documents(s) drawn up by Legal Services in response to request under #9 above.

III. FP7 CALLS FOR PROPOSALS

The following paragraphs provide extracts from Regulation No 1605/2006, FP7 rules for participation:

“Article 13 Calls for proposals
1. (.....) In addition to the publicity specified in the Implementing Rules, the Commission shall publish calls for proposals on the Internet pages of the Seventh Framework Programme, through specific information channels, and at the national contact points set up by the Member States and the associated countries. (.....)

3. Calls for proposals shall have clear objectives so as to ensure that applicants do not respond needlessly. (.....)

Article 15 Evaluation, selection and award
1. The Commission shall evaluate all the proposals submitted in response to a call for proposals on the basis of the principles for evaluation, and the selection and award criteria set out in the specific programme and the work programme. (.....)

Article 16 Submission, evaluation, selection and award procedures
(.....)
3. The Commission shall adopt and publish rules governing the procedure for the submission of proposals, as well as the related evaluation, selection and award procedures and publish guides for applicants including guidelines for evaluators. (.....)
4. The Commission shall adopt and publish rules to ensure consistent verification of the existence and legal status of participants in indirect actions as well as their financial capacity.”

Tens of FP7 calls for proposals expressly requested the submission of ‘short profiles’, i.e. short CVs, that is to say personal data of third parties to the FP7 proposal. The terms of the calls for proposal are completely silent about (i) the legal requirement of the entity submitting the proposal (i.e. the coordinator) to duly notify the data subjects whose short profile has been included into the proposal in accordance with the national law transposing article 11(1) of Directive 95/46/EC, (ii) that the Commission services will comply with Regulation No 45/2001, in particular article 12(1), (iii) that the Commission services have failed to notify the personal data processing operations pursuant to article 28(1) of Regulation No 45/2001.

Regarding FP7 calls for proposal published after the Schecke Judgment of the Court of Justice in Case (C-92/09) - especially in view of several provisions of Union law declared as invalid, because of the proportionality and the duty of the EU legislature to adopt acts with the least possible interference with the fundamental right of personal data protection – ‘compelling’ FP7 applicants to carry out such a massive personal data processing, whilst the Research family DGs could have ‘retired’ their older practices of personal data processing, is apparently not in line with proportionality.

Copies of the following documents held by the Commission services are kindly requested:

11. The Commission Decision(s) duly adopting the FP7 calls for proposals entailing the aforesaid personal data processing, including their publication in CORDIS

12. In case the Decisions under #11 were not adopted according to the material Commission’s Rules of Procedure, the official administrative act(s) conferring on senior officials the authority to duly adopt such administrative decisions and the assumption by them of the responsibilities for the lawfulness of those decisions.

13. The documents(s) drawn up by the Research family DGs setting out the lawfulness of the FP7 calls for proposals with respect to Regulation No 45/2001.

14. The documents(s) drawn up by the Research family DGs requesting the opinion of the Legal Services about the lawfulness of the FP7 calls for proposals with respect to Regulation No 45/2001.

15. The documents(s) drawn up by Legal Services in response to request under #14 above.

IV. FP7 NEGOTIATIONS GUIDANCE NOTES

Several FP7 such notes expressly request the submission of ‘short profiles’, i.e. short CVs, that is to say personal data of third parties to the FP7 grant agreement. These notes are completely silent about (i) the legal requirement of the entity submitting the proposal (i.e. the coordinator) to duly notify the data subjects whose short profile has been included into the proposal in accordance with the national law transposing article 11(1) of Directive 95/46/EC, (ii) that the Commission services will comply with Regulation No 45/2001, in particular article 12(1), (iii) that the Commission services have failed to notify the personal data processing operations pursuant to article 28(1) of Regulation No 45/2001.

Copies of the following documents held by the Commission services are kindly requested:

16. The Commission Decision(s) duly adopting the FP7 Negotiations Guidance Notes entailing the aforesaid personal data processing, including their publication in CORDIS.

17. In case the Decisions under #16 were not adopted according to the material Commission’s Rules of Procedure, the official administrative act(s) conferring on senior officials the authority to duly adopt such administrative decisions and the assumption by them of the responsibilities for the lawfulness of those decisions.

18. The documents(s) drawn up by the Research family DGs setting out the lawfulness of the FP7 Negotiations Guidance Notes with respect to Regulation No 45/2001.

19. The documents(s) drawn up by the Research family DGs requesting the opinion of the Legal Services about the lawfulness of the FP7 Negotiations Guidance Notes with respect to Regulation No 45/2001.

20. The documents(s) drawn up by Legal Services in response to request under #19 above.

V. GUIDE TO FINANCIAL ISSUES RELATING TO THE FP7 INDIRECT ACTIONS

The latest version is found at CORDIS, ftp://ftp.cordis.europa.eu/pub/fp7/docs/financialguide_en.pdf, and is dated 18/3/2013. For the sake of brevity, we will refer to it as the ‘Financial Guides’.

The disclaimer on the first page reads:
“This guide is aimed at assisting beneficiaries. It is provided for information purposes only and its contents are not intended to replace consultation of any applicable legal sources or the necessary advice of a legal expert, where appropriate. Neither the Commission nor any person acting on its behalf can be held responsible for the use made of these guidance notes. ”

Part of page 56 reads:
“In cases where personnel work on several projects during the same period the time recording system must enable complete reconciliation of total hours per person, listing all activities (EU projects, internally funded research, administration, absences etc.). It is important to remember that an effective time-recording system (a system which certifies the reality of the hours worked) is a requisite for the eligibility of the costs. A contract, as a document signed before the work is actually performed, would not be sufficient. ”

Page 57 provides an “Example of a time-sheet template which may be of use”.

The following key observations are made:

- The disclaimer itself says in plain English that the Guide is a ‘non-paper’. The Commission does not undertake any responsibility towards a FP7 beneficiary which may have scrupulously followed its provision. It is logical to wonder what the purpose of this guide is.

- The ostensible ‘recommendations’ on the “(.....) time recording system must enable complete reconciliation of total hours per person (.....)” is in fact a recommendation in a total absence of Union law and the FP7 grant agreement. In other words, the ‘non-paper’ Guide interferes with the private affairs of the FP7 beneficiary with other third parties (the researchers) in the total absence of Union law. It is not a hyperbole to say that such a non-binding ‘recommendation’ is a disguise of an unlawful intention.

- Recording illnesses down to a single day level may be processing of data relating to health, for which specific provisions of Regulation No 45/2001 apply.

- The ‘non-paper recommendations’ amount to directions for personal data processing to the private affairs of legal and natural persons, outside Union law.

It is thus clear that the substance of at least one part of the ‘non-paper’ Guide is questionable.

Copies of the following documents held by the Commission services are kindly requested:

21. The Commission Decision(s) duly adopting the FP7 Financial Guides entailing the aforesaid personal data processing, including their publication in CORDIS.

22. In case the Decisions under #21 were not adopted according to the material Commission’s Rules of Procedure, the official administrative act(s) conferring on senior officials the authority to duly adopt such administrative decisions and the assumption by them of the responsibilities for the lawfulness of those decisions.

23. The documents(s) drawn up by the Research family DGs setting out the lawfulness of the FP7 Financial Guides with respect to Regulation No 45/2001.

24. The documents(s) drawn up by the Research family DGs requesting the opinion of the Legal Services About the lawfulness of the FP7 Financial Guides with respect to Regulation No 45/2001.

25. The documents(s) drawn up by Legal Services in response to request under #24 above.

VI. CERITIFICATES ISSUED BY EXTENRAL AUDITORS – GUIDENACE NOTES FOR BENEFICIARIES AND AUDITORS

The last version is dated 1/7/2012 and is found in CORDIS, ftp://ftp.cordis.europa.eu/pub/fp7/docs/guidelines-audit-certification_en.pdf. It will be referred to henceforth as the ‘Guide to Auditors’

The disclaimer of page 1 reads:
“Disclaimer
This guide is aimed at assisting beneficiaries and auditors. It is provided for information purposes only and its contents are not intended to replace consultation of any applicable legal sources or the necessary advice of a legal expert, where appropriate. Neither the Commission nor any person acting on its behalf can be held responsible for the use made of these
guidance notes. ”

The version of the Guide to Auditors dated 23/7/2007 is found at the link.
http://www.dlr.de/Portaldata/28/Resource.... There is no disclaimer in that version. Part of page 2 reads:

“The objective of these guidance notes is to give an overview of the requirements and provisions which are of importance in claiming costs for reimbursement and hence in the certification of financial statements and on the methodology. These guidance notes do not reflect an official position of the Commission; only the provisions of the signed grant agreement are binding.”

Part of page 2 and also of page 3 of the 2012 and 2007 Guide to Auditors read:
“The objective of these guidance notes is to give an overview of the requirements and provisions which are of importance in claiming costs for reimbursement and hence in the Certification on the Financial Statements and on the Methodology. ”

Part of page 6 ‘General Principles’ of the 2012 Guide to Auditors reads:
“The auditor has a contractual relationship solely with the beneficiary. The auditor does not have a contractual relationship with the Commission and the Commission will not intervene in any dispute between the auditor and the beneficiary.”

Part of pages 61-62 of the 2012 Guide to the Auditors reads:
“This procedure will provide to the Commission the information it needs to assess whether the recording of project time is in line with the requirements of the Grant Agreement. Normally, time recording should be carried out regularly and authorised by the project manager to ensure that the time worked on the project can be traced and charged correctly. For the employees selected, the hours charged to the project should have been accurately recorded in the time recording system. Any discrepancies between
the amount charged to the project and the amount in the time sheets (or if time sheets are absent) should be recorded as an exception.

Which documents should the beneficiary prepare for the auditor?

The beneficiary should provide a description of the time-recording system and, for the employees selected for testing, make available all the time sheets or provide full access to the computer system which records the time of the employees. The auditor should be able to trace the time charged for the sample selected to the time records of each individual employee.”

The following key observations are made:

- An ‘overview of the requirements and provisions which are of importance in claiming costs for reimbursement’ is rather incompatible with the ‘non-paper’ nature of the disclaimer.

- The FP7 programme Union law is completely silent with regards to any personal data processing in the framework of issuing a certificate on financial statements.

- The acknowledged (by the Research family DGs) contractual relationship between the FP7 beneficiary and the certifying auditor make any data processing pursuant to that contract without the consent of the relevant data subjects outright unlawful according to the personal data protection legislation of the Member States.

- The above ‘non-paper recommendations’ are clear instructions to the certifying auditors to process personal data as a result of two distinct contractual relationships, namely, first, the FP7 beneficiary with Commission, and second, the FP7 beneficiary with the certifying auditor. In other words, in the total absence of Union law the Research family DG assisted by DG BUDGET ‘instructs’ two private sector entities to infringe the personal data protection legislation of a Member State.

- The above ‘recommendations-instructions’ concern total costs in the order of 100 billion Euro. It is clear that this is massive personal data processing.

Copies of the following documents held by the Commission services are kindly requested:

26. The Commission Decision(s) duly adopting the FP7 Guides to Auditors entailing the aforesaid personal data processing, including their publication in CORDIS.

27. In case the Decisions under #26 were not adopted according to the material Commission’s Rules of Procedure, the official administrative act(s) conferring on senior officials the authority to duly adopt such administrative decisions and the assumption by them of the responsibilities for the lawfulness of those decisions.

28. The documents(s) drawn up by the Research family DGs setting out the lawfulness of the FP7 Guides to Auditors with respect to the national legislation of personal data processing.

29. The documents(s) drawn up by the Research family DGs requesting the opinion of the Legal Services About the lawfulness of the FP7 Guide to Auditors with respect to the national legislation of personal data processing.

30. The documents(s) drawn up by Legal Services in response to request under #29 above.

Yours faithfully,

Mr. Orestis BEKAS

Direction générale de la recherche et de l’innovation

2 Attachments

Dear Mr Bekas,

 

Please find attached the reply to your request for access to documents.

 

Yours sincerely,

 

 

 

Diana TILOUCHE
 
European Commission
Legal Service

BERL 1/111
B-1049 Brussels/Belgium
+32 2-299 57 49
[1][email address]

 

References

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1. mailto:[email address]

Direction générale de la recherche et de l’innovation

1 Attachment

Dear Mr Bekas,

 

Thank you for your email dated 24 July 2013.  We hereby acknowledge
receipt of your application for access to documents, which was registered
on 25 July 2013 with reference number GestDem 2013/3912.

 

As a preliminary point we would like to kindly draw your attention to the
fact that Regulation (EC) N°1049/2001 only relates to the public
divulgation of documents which are in the possession of the institution
which has received the application.  If, as a data subject, you wish to
activate a remedy procedure related to the processing itself of your
personal data by the Commission, we need to refer you to the remedies
foreseen by article 32 of regulation (EC) N°45/2001 according to which
"every data subject may lodge a complaint with the European Data
protection Supervisor ([1][email address]) if he or she considers that
his or her rights under article 286 of the Treaty have been infringed as a
result of the processing of his or her personal data by a community
institution or body". The regulation also states that "the Court of
Justice shall have jurisdiction to hear all disputes which relate to the
provision of this regulation". These means of redress would be the
appropriate routes to take and they are fully available to you as a data
subject.

 

Therefore, we would like to kindly stress that the present e-mail is made
within the provisions of Regulation (EC) N°1049/2001. 

 

We have also noted that your application concerns a very large number of
documents, many of which will require additional information or will need
to be assessed individually.  Such a detailed analysis cannot be carried
out within the normal time limits set out in Article 7 of Regulation (EC)
N°1049/2001.

 

However, the Regulation also provides for a possibility to confer with
applicants in order to find a fair solution when an application concerns a
very large number of documents. Article 6(3) states that "in the event of
an application relating to a very long document or to very large number of
documents, the institution concerned may confer with the applicant
informally, with a view to finding a fair solution".

 

Based on this provision, and in order to handle your application for
access to documents with the utmost care, we would propose to organise a
meeting with you in order to discuss the best way to respond to your
request.  This meeting could be organised in our premises, or via
video-conference, according to your preference.

 

In the meantime, as we are committed to the highest level of transparency,
and we will send you as soon as possible the documents which we will
identify as falling within the scope of your application, if any.

 

If you have any questions concerning this proposal, you can contact us by
email to:

[2][email address]

Thank you in advance for your understanding.

Yours faithfully,

Silvia BOJINOVA

Head of Unit

 

[3]Description: cid:image001.png@01CDDFB2.68871B70

European Commission

DG Research & Innovation

R5

 

References

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2. mailto:[email address]

Dear Research and Innovation (RTD),

Referring to the application pursuant to Regulation No 1049/2001 GestDem 2013/3912 for which DG RTD has assumed the responsibility to handle the initial reply, this is to provide the applicant’s position and further information regarding the DG RTD email dated 26/8/2013.

I. DG RTD CLARIFICATION REGARDING REGULATION NO 45/2001

As a preliminary point, the applicant has appreciated the clarification of DG RTD regarding the citizens’ – data subject rights enshrined in Regulation No 45/2001.

In my view, the application GestDem 2013/3912 is absolutely clear that it solely concerns documents the Commission or the Commission services have drawn up regarding particular aspects of the FP6 & FP7. More specifically, the application is about several ‘measures’ that the Research DGs have taken vis-à-vis applicants and participants in FP6 & FP7 actions, the internal process(es) with which such ‘measures’ were duly ‘adopted’, and the compliance of those measures with Regulation No 45/2001 and the national personal data protection legislation.

It is also worth mentioning that articles 4(5) & 13 of the Commission Decision 597/2008 ‘adopting implementing rules concerning the Data Protection Officer pursuant to Article 24(8) of Regulation (EC) No 45/2001 (...)’ stipulates an additional to an EDPS complaint investigation procedure for complaints regarding infringements of Regulation No 45/2001, with the investigation conducted by the Data Protection Officer.

In conclusion, the application GestDem 2013/3912 concerns documents drawn up by the Commission or the Commission services pursuant to the applicable legal provisions. Citations and references to provisions of Regulation No 45/2001 and Union law in the initial application have as their primary purpose to argue that the Commission services ought to have drawn up documents falling within the scope of this application.

II. APPARENT IDENTIFICATION BY DG RTD OF A VERY LARGE NUMBER OF DOCUMENTS

DG RTD has stated that “We have also noted that your application concerns a very large number of documents, many of which will require additional information or will need to be assessed individually.”.

The following initial observations are made:

1. DG RTD has not provided the slightest hint about the order or magnitude of the number of the ‘identified’ documents or the requests to which group(s) of those ‘identified’ documents correspond (e.g. about fifty documents for request under point 1).

2. DG RTD has not even provided information for a single document about date, author(s), title, contents and so on.

3. While according to DG RTD ‘additional information’ is required for some of the ‘identified’ documents, DG RTD has not provided the applicant with any information at all about what this ‘additional information’ is about.

4. That some of the ‘indentified’ documents “will need to be assessed individually” suggests that DG RTD considers that some of the exceptions of article 4 of Regulation No 1049/2001 may be applicable. This is very surprising because documents directly associated with the fundamental right of personal data protection cannot be subject to an article 4 exception and are also subject to an overriding public interest.

5. Not providing any information whatsoever to the applicant about the ‘nature’ of the ‘identified’ documents will probably increase the administrative burden of providing the initial answer, as it is conceivable that a somewhat ‘informed’ applicant may narrow the scope of requests, thereby rendering the assessment of several documents redundant.

In view of the foregoing observations, it must be concluded that the DG RTD effective total silence is counterproductive.

III. REPLY OF THE LEGAL SERVICES

By way of the letter Ares(2013)2873734 - 14/08/2013, initial answer to the application GestDem 3915/2013, the Legal Services informed me that no document exist regarding requests under points 5, 10, 15, 20, 25 and 30 of the initial application. Consequently, it is very likely – if not certain - that the Research DGs did not request the corresponding legal opinions, which unavoidably implies that no documents exist for the requests under points 4, 9, 14, 19, 24, and 29 of the application.

IV. COMMISSION DECISIONS ADOPTED ORALLY BY THE COLLEGE OR BY THE WRITTEN PROCEDURE

Requests under points 1, 6, 11, 16, 21, and 26 concern Commission Decisions, which – if they exist – were duly adopted either by the College or by the written procedure.

It is reasonable to expect that DG RTD has a full electronic copy of all Commission Decisions concerning FP6 & FP7, and that those copies are stored in a document management system where full-text searches can be performed. In fact, most PDF files containing Commission Decisions going back to 2002 have the full-text ‘embedded’ into the PDF files. A few simple full-text searches of the Commission Decisions concerning FP6 & FP7 will be sufficient to identify Decisions in which the Commission duly adopted the corresponding personal data processing.

Consequently, regarding requests under points 1, 6, 11, 16, 21, and 26 the number of documents – if they exist at all – is very small.

V. COMMISSION DECISIONS ADOPTED BY DELEGATION AND SUB-DELEGATION

Requests under points 2, 7, 12, 17, 22, and 27 concern Commission Decisions, which – if they exist – were duly adopted by the delegation or sub-delegation procedure of the Commission Rules of Procedure. In case the Commission duly authorised senior officials of the Research DGs to adopt Guides for Applicants and so on entailing personal data processing such those at issue, identifying the Commission Decisions, or other legal administrative acts, delegating authority is, in my view, very straightforward.

The attention of DG RTD is drawn to the internal documents conferring to Authorising Officers - AO by delegation or sub-delegation the power to sign grant agreements or issue recovery orders. Since it is very straightforward to identify the documents regarding the powers delegated to the AO, it is equally very straightforward to identify the documents – if they exist - concerning requests under points 2, 7, 12, 17, 22, and 27. Moreover, the reasoning set out in the second paragraph of section IV above is equally applicable to the identification of the Commission Decision delegating the powers at issue to senior officials.

In conclusion, regarding requests under points 2, 7, 12, 17, 22, and 27 the number of documents – if they exist at all – is not that high.

VI. DOCUMENTS ABOUT COMPLIANCE WITH REGULATION NO 45/2001

Requests under points 3, 8, 13, 18, and 23 concern internal documents analysing the compliance with Regulation No 45/2001 of the FP6 & FP7 calls for proposals, negotiations guides and so on. Conceivably, a large number of documents fall within the scope of those five requests.

Since the underlying theme is compliance with Regulation No 45/2001, it is suggested that the DG RTD starting point of searches to ‘identify’ the relevant documents are the DG RTD prior notifications of article 25 of Regulation No 45/2001 concerning the personal data processing operations at issue, namely DPO-978, DPO-2382 and DPO-3398. DG RTD DPO-978 is the only one regarding proposal submission in FP6 & FP7. DG RTD DPO-2382 was ‘retired’ about late 2012 and the processing operations are now supposedly covered by DPO-978.6. DG RTD DPO-3398 appears to be the only prior notification solely concerned with aspects of ongoing or finished FP6 & FP7 actions, i.e. the external financial audits.

In so much ‘short profiles’ are concerned, it does not take a degree in law with a specialisation in personal data protection to realise that the personal data processing operations imposed by the Guides to Applicants and so on are not mentioned at all in DPO-978 and DPO-2382. Furthermore, the DG RTD DPO-3338 has (i) a false statement about a non-existing EDPS consultation (see EDPS document C-2012 0457 of 4/6/2012 available as the first two pages at http://www.asktheeu.org/en/request/677/r... 11 21.pdf), (ii) in 2012 it stated that no subcontractors were used by DG RTD which is a blatant ‘gross inaccuracy’, and (iii) the DPO-33398.3 purported legal basis (art. 170 FR, 60.4 FR & art. 47.4 IR) does not cover the external financial audits of the Commission’s contractual counterparties in a private law contract, in a legal context where the Commission does not rely on its prerogatives as a public authority.

Nevertheless, according to Regulation No 45/2001 and Commission Decision 597/2008 the data controllers of DPO-978 and DPO-2382, as well as the DG RTD Data Protection Coordinator - DPC, have had statutory duties regarding compliance with the Union law about the fundamental right of personal data protection. These duties undoubtedly entailed the drawing up of documents that certainly fall within the scope of requests under points 3, 8, 13, 18, and 23.

It is suggested that the DG RTD R.5 Unit consult with the said data controllers and the DPC to identify documents falling under requests 3, 8, 13, 18, and 23.

In the light of the manifest disregard of Regulation No 45/2001 regarding the personal data processing of the DG RTD prior notifications DPO-978, DPO-2382 and DPO-3398 at the core of this application) it is understandable that DG RTD is caught between a rock and a hard place. Yet, DG RTD has a legal obligation to diligently search to identify the relevant documents, examine whether any exception of article 4 is applicable, and release the documents not protected by an exception. Disregard of Union law and the resulting embarrassing situation are not a justification to cut corners in strictly observing Regulation No 1049/2001 when it comes to application for documents directly linked to the embarrassing situation.

VII. REQUEST ABOUT NATIONAL LEGISLATION FOR PERSONAL DATA PROCESSING

Request under point 28 concerns this matter.

Since the aforesaid data controllers and the DPC have had a statutory responsibility for complying with Regulation No 45/2001, it is logical to expect that those officials would have examined compliance with national laws, since in so much personal data are concerned the audit certificates are issued in a legal context solely governed by national law, and most definitely not by Union law. It is therefore suggested that DG RTD R.5 Unit consult with the said data controllers and the DPC to identify documents falling under requests.

VIII. DG RTD PROPOSED INFORMAL CONSULTATIONS

With all due respect to the Commission services, I feel compelled to take issue with the DG RTD suggestion to organise a meeting in Brussels, or hold a videoconference for the purposes of facilitating the handling by DG RTD of the ‘large number of documents’. The following observations are made:

1. The notion of organising meetings at the premises of an Institution is entirely foreign to Regulation No 1049/2001, Commission Decision 937/2001, and the Commission’s Code of Good Administrative Behaviour (http://ec.europa.eu/transparency/civil_s...).

2. In so much Regulation No 1049/2001 is concerned, it directly places the vast majority of European citizens at a disadvantageous position with regards citizens living in the greater area of Brussels. It also entails both considerable travelling costs for residents of Member States beyond Belgium and also spending one or two days travelling to Brussels.

3. Organising a video-conference presupposes that the applicant has a suitably fast Internet connection and the required equipment. Before DG RTD suggests the organisation of a video-conference with applicants, in my view it ought, first, to have read the reports about what percentage of citizens already have broadband Internet connections in the Union, and then assess whether such ‘ideas’ discriminate citizens in remote rural areas.

4. Although not the case for the present applicant, DG RTD should consider whether video-conferencing is suitable for people with disabilities.

5. Should DG RTD come up with the ‘idea’ of inviting applicants to the Commission’s Representations premises in the Member States for a video-conference, it has to assess whether such an ‘idea’ is appropriate for EU citizens living hundreds of kilometres away from the closest Representation.

6. If the ‘novel idea’ of meetings and video-conferences were to be adopted in somewhat regular fashion, this will run the risk of effectively curtailing or frustrating the citizens’ rights enshrined in Regulation No 1049/2001, since it would give to an Institution the means to introduce an additional ‘step’ in the initial handling of an application.

6. Finally and as regards this application, organising a meeting or a video-conference while leaving the applicant completely in the dark about what documents DG RTD has already identified will likely result in a meeting or a video-conference session that will not be well-organised.

IX. CONCLUSIONS

In the light of the foregoing, the DG RTD proposal for a meeting or a video-conference cannot be accepted. Exchange of emails is perfectly suitable and adequate for handling every possible need in conferring with an applicant.

The foregoing analysis strongly suggests that except of requests under points 3, 8, 13, 18, 23 and 28, the number of documents falling under the scope of requests of the application GestDem 2013/3912 is small, if the documents exist at all.

To facilitate DG RTD with coping efficiently with a potentially ‘large number of documents’ falling within the scope of requests under points 3, 8, 13, 18, 23 and 28 it is proposed that initially DG RTD examine the documents drawn up by the DPO-978, DPO-2382 and DPO-3398 data controllers and the DG RTD Data Protection Coordinator, simply because those officials have had a statutory duty entailing the drafting of documents falling under those six requests. Documents drawn up by other officials and administrative units are to be handled afterwards.

I remain at your disposal for any additional information or clarification that DG RTD may require.

Yours faithfully,

Mr. Orestis BEKAS

Direction générale de la recherche et de l’innovation

15 Attachments

Dear Mr Bekas,

 

Thank you for your email of 7 September 2013 in relation to your
application for access to documents registered under the above mentioned
reference.

 

We understand from your message that you are critical of the way the
Commission might have acted in relation with the processing your personal
data by the community institutions and bodies. If this is the case, we
must draw your attention to the fact that this is an issue which, in
substance, cannot be addressed and dealt with within the scope and
procedure of regulation 1049/2001. This regulation only relates to the
public divulgation of documents which are in the possession of the
institution which has received the application. If, as a data subject, you
wish to activate a remedy procedure related to the processing itself of
your personal data by the Commission, we need to refer you to the remedies
foreseen by article 32 of regulation (EC) 45/2001 (OJ L8/6 of 12.1.2001)
according to which "every data subject may lodge a complaint with the
European Data protection Supervisor if he or she considers that his or her
rights under article 286 of the Treaty have been infringed as a result of
the processing of his or her personal data by a community institution or
body" The regulation also states that "the Court of Justice shall have
jurisdiction to hear all disputes which relate to the provision of this
regulation". These means of redress would be the appropriate routes to
take and they are fully available to you as a data subject.

 

We have also taken good note of all your comments made within the
framework of Regulation (EC) N°1049/2001 in relation to the practical
issues raised by the organisation of a meeting for the purpose of handling
voluminous and complex requests.  We would like hereby to reassure you
that elements of inter alia geographical situation, potential handicaps
and technological equipment will be duly taken into consideration in order
to tailor our proposals for meetings in function of the legitimate needs
of the various categories of applicants.

 

For the purpose of handling your application in the best possible way, we
would kindly ask therefore that you communicate to us your address so that
we can envisage a concrete solution which would be properly adapted to
your specific situation, including your location.  Please do not also
hesitate to let us know, in addition, of any disabilities or
particularities which should be taken into consideration for the purpose
of setting up a potential meeting.

 

In the meantime, as we are committed to the highest level of transparency,
please find attached documents which correspond to points 3, 8, 13, 18 and
23 of your application.

 

Yours sincerely,

 

Silvia BOJINOVA

Head of Unit

 

[1]Description: cid:image001.png@01CDDFB2.68871B70

European Commission

DG Research & Innovation

R5

 

ORBN 09/151

B-1049 Brussels/Belgium

+32 229-85891

[2][email address]

 

[3]http://ec.europa.eu/research

 

 

 

 

 

 

References

Visible links
2. mailto:[email address]
3. http://ec.europa.eu/research

Direction générale de la recherche et de l’innovation

1 Attachment

Dear Mr Bekas,

 

We refer to our email dated 25/09/2013 in which we sent you documents
corresponding to points 3, 8, 13, 18 and 23 of your application for access
to documents, registered under the above mentioned reference.

 

Further to this email, we also proposed a solution for dealing with your
application. Pursuant to our commitment to maintaining transparency within
the ambit of Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, we envisaged that a
meeting (properly adapted to suit your specific arrangements) would
facilitate the handling of your request to the fullest extent.

 

Unfortunately, as you have not yet communicated to us your address, we
have been unable to set up the proposed meeting with you.

 

We would like hereby to inform you that for administrative purposes we
will have to consider your application withdrawn if we do not receive a
response from you within 15 working days.

 

            We thank you very much in advance for your kind understanding.

 

Yours Sincerely,

 

Silvia BOJINOVA

Head of Unit

 

[1]Description: cid:image001.png@01CDDFB2.68871B70

European Commission

DG Research & Innovation

R5

 

ORBN 09/151

B-1049 Brussels/Belgium

+32 229-85891

[2][email address]

 

[3]http://ec.europa.eu/research

 

References

Visible links
2. mailto:[email address]
3. http://ec.europa.eu/research

Mr. Orestis BEKAS

Dear Research and Innovation (RTD),

I refer to the email of the R.5 Unit of 24 October, http://www.asktheeu.org/en/request/fp6_f..., the R.5 Unit email of 27 September, http://www.asktheeu.org/en/request/fp6_f..., and the applicant's email of 7 September, http://www.asktheeu.org/en/request/fp6_f....

A. OBSERVATIONS

The applicant respectfully puts to the DG RTD R.5 Unit the following points and considerations:

1. The insistence of R.5 Unit to demand the organisation of a meeting - "Unfortunately, as you have not yet communicated to us your address, we have been unable to set up the proposed meeting with you" - as an absolute precondition to handle requests #3, #8, #13, #18 and #23 ('the request at issue'), despite the applicant's strong objections and justifications thereof, amounts to the introduction of an additional, arbitrary and unlawful step in the first stage of the administrative procedure of Regulation No 1049/2001.

2. The applicant has made clear his position that he is not obliged to attend such a meeting, which is not stipulated in any legal provision.

3. The requests at issue concern solely the lawfulness of the main instruments of the FP6 and FP7 (e.g. calls for proposals) as regards Regulation No 45/2001. It is manifestly evident that such documents do indeed exist, but they disclose further information about the policy of the Research DGs over the last 10 years to disregard the national laws transposing Directive 95/46/EC, Regulation No 45/2001 and Commission Decision 597/2008 of 22/7/2008, OJ L 193 page 7.

4. The two false statements of the DG RTD prior notification of article 25 of Regulation No 45/2001 DPO-3398.1 and its wholly bogus legal basis - something that is now public information in asktheeu.org - shows that the R.5 Unit is in the business of preventing further disclosures of the DG RTD illegal policies and wrongful acts as regards the fundamental right of personal data protection.

5. According to article 1, second sub-paragraph, of Commission Decision 597/2008 the DPO-3398.1 controller is personally liable for the false statements and its bogus and wholly deceitful nature. An administrative department, whose a senior official in a statutory document resorts to the inclusion of willful and intentional materially false statements about facts, has long crossed the Rubicon separating legality and illegality in so far Regulation No 45/2001 is concerned.

6. In view of the above, it must be concluded that the illegal R.5 Unit request for a meeting - as an absolute precondition for providing an initial reply to the requests at issue - is an attempt to create a fig leaf of excuses for not providing an initial reply.

B. PROPOSAL TO MOVE FORWARD

The applicant proposes the following:

1. He will shortly set up a document sharing facility ('the facility') accessible via Internet.

2. The R.5 Unit will be provided - via a separate channel - with the credentials to fully access and upload in that facility whatever file it wishes to communicate to the applicant (e.g. document, audio).

3. The applicant may also upload documents for the attention of DG RTD.

4. The applicant will post every single document residing in the facility to another, second document repository and will make the documents publicly visible. The links to the documents in the second repository will be made publicly visible via asktheeu.org, as part of the correspondence about this application. The public will thus be able to see and download the documents exchanged between DG RTD and the applicant.

The facility will essentially be an 'electronic place' that will fully serve the 'very peculiar needs' about an 'address' of the R.5 Unit concerning the requests at issue.

C. CONCLUDING REMARKS

In case the R.5 Unit continues with its illegal demands for a meeting, the applicant may be compelled to escalate the matter bringing it to the attention of the highest echelons of the Commission, other Institutions and National Authorities.

Transparency serves the fundamental right in a democratic society governed by the rule of law to scritinise the legality of the conduct and acts of any Public Administration. Under such a regime, the obstructive and evasive tactics of an administrative department aiming at preventing the full disclosure of documents are doomed to fail.

The applicant sincerely hopes that the R.5 Unit will accept the above proposal and proceed swiftly with the handling of the requests at issue.

Yours faithfully,

Mr. Orestis BEKAS

Mr. Orestis BEKAS

Dear Research and Innovation (RTD),

This message is a resend of the message I sent to DG RTD a few minutes ago via my private email address about the document sharing facility of my email of 30/10/2013.

It is to ensure the compliance of the application with the principle of transparency of asktheeu.org.

My private email address and the password of ge.tt have been redacted.

***********

Date: Thu, 31 Oct 2013 08:23:15 +0000
From: orestis.bekas@.........
Subject: GestDem 3912/2013 - Orestis BEKAS, document sharing facility
To: [email address]
CC: [email address]

Dear Madam/Sir,

I refer to the application pursuant to Regulation No 1049/2001 GestDem 3912/2012 that was lodged via asktheeu.org and my email of 30/10/2013, http://www.asktheeu.org/en/request/fp6_f....

This messge provides the details regarding "the document sharing facility ('the facility')" referred to in my reply of 30 October.

The facility is the website http://ge.tt, which is a document sharing website.

To upload documents, please proceed as follows:

1. In the top part of the http://ge.tt page there is a 'LOGIN' button. Please press it.
2. A pop-up window appears. Please enter as email 'orestis.bekas@.......', password '.......'. The quotes " '' "are not to be entered. You will be logged in with full access control.
3. To upload a document, please press the 'Upload files' button. A pop-up window will appear to select the file to be uploaded.
4. When all documents have been uploaded, please press the 'LOGOUT' button at the top rightmost part of the web page.

As DG RTD will have full access, please do not delete any files uploaded there.

I have already uploaded the reply of the Legal Services, document Ares (2013) )2873734 - 14/08/2013 - http://www.asktheeu.org/en/request/710/r... , as a demonstration.

Files uploaded to ge.tt are visible to the public if the link identifying the file is provided.

The document sharing facility enables DG RTD to communicate with the applicant in the same way as a postal address. It is also more efficient and eliminates postal costs.

For full public visibility of the correspondence, this message will be resent via asktheeu.org, with the details about fully accessing the ge.tt account, and my private email address redacted.

Yours sincerely,

Mr. Orestis BEKAS

***********

Yours faithfully,

Mr. Orestis BEKAS

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Afficher les sections citées

Sent a follow up to Direction générale de la recherche et de l’innovation again.

Sent a follow up to Direction générale de la recherche et de l’innovation again.

Direction générale de la recherche et de l’innovation

1 Attachment

Dear Mr Bekas,

 

Thank you very much for your emails of 30/10/2013 and 31/10/2013 in
relation to your application for access to documents registered under the
reference Gestdem 2013/3912.

 

Please kindly note that the present email is drafted in the framework of
Regulation (EC) N°1049/2001 and does not therefore address any of your
allegations regarding the legality of DG RTD's actions.

 

We sincerely regret that you have decided to reject our proposal for a
meeting (in person or via video-conference) which was designed to enable
us to handle your wide application for access to documents in the best
possible way.

 

We consider that such a proposed meeting, far from being an unlawful
absolute precondition to the handling of your application, is in fact an
opportunity to establish a direct friendly contact with you and to provide
you with a better understanding on how we work, in light of your
concerning accusations.

 

We have carefully examined your counter-proposal regarding the use of a
public platform. We regret to inform you that unfortunately we cannot
grant access to your suggestion for two main reasons. Firstly, this type
of proposed mechanism does not meet our security rules designed to
preserve the integrity of the Commission's documents. Secondly, this
solution deflects the very aim of our meeting proposal which intended to
provide in an efficient manner direct answers to the questions underlying
your rather complex application for access to documents in light of our
limited resources.

 

As we remain committed to the highest level of transparency, we will
endeavour to provide you with our reply in respect to the remaining points
of your request for access to documents in the shortest delay as possible.

 

We thank you very much in advance for your kind understanding and
patience.

 

Silvia BOJINOVA

Head of Unit

 

[1]Description: cid:image001.png@01CDDFB2.68871B70

European Commission

DG Research & Innovation

R5

 

ORBN 09/151

B-1049 Brussels/Belgium

+32 229-85891

[2][email address]

 

[3]http://ec.europa.eu/research

 

 

References

Visible links
2. mailto:[email address]
3. http://ec.europa.eu/research

Dear Research and Innovation (RTD),

The present email is a confirmatory application in accordance to Regulation 1049/2001.

It is kindly requested that DG RTD forward it to the Secretariat-General, which according to article 4 of Commission Decision 937/2001 is responsible for adopting the final decision as regards a confirmatory application.

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

Dear Secretariat-General,

The confirmatory application concerns all requests of the initial application, expect those under (5), (10), (15), (20), (25), and (30) for which the Legal Services provided the initial reply, GestDem 2013/3915, Ares(2013) 2873734 – 14/08/2013.

1. CORRESPONDENCE WITH DG RTD ABOUT THE INITIAL REPLY

Several emails with DG RTD were exchanged. DG RTD made the provision of the initial reply to requests under (3), (8), (13), (18), and (23) (hereafter the ‘thorny’ requests) conditional on the organisation of a meeting with the undersigned. In spite of the undersigned’s protests about the arbitrary and discriminatory nature of the DG RTD ‘organisational measure’ of a meeting, DG RTD, seemingly, insisted in regarding the meeting as a precondition of the initial reply. On 31 October the undersigned suggested to DG RTD a way to move forward, namely that all kinds of documents could be exchanged via the document sharing facility http://ge.tt, http://www.asktheeu.org/en/request/fp6_f.... DG RTD has not provided a response to that suggestion.

It appears that the DG RTD requirement to hold a meeting with the undersigned is essentially an attempt to create the pretext of not providing an initial reply to the first stage of the administrative procedure of Regulation 1049/2001. Put differently, it is the DG RTD implied total refusal to release documents, with the aggravating factor that it lacks a statement of reasons.

2. IMPLIED REFUSAL TO RELEASE DOCUMENTS

Except the thorny requests and those handled by the Legal Services, DG RTD has been totally silent in its emails about requests (1), (2), (6), (7), (11), (12), (16), (17), (21), (22), (26), and (27). From the initial reply of the Legal Services, it appears that no documents were even drawn up concerning requests (4), (9), (14), (19), (24), and (29); however, DG RTD has refrained from explicitly stating that no documents are held.

The silence of DG RTD must be interpreted as an implied refusal to release the requested documents, except those for which the Legal Services the assumed responsibility to provide an initial reply.

3. SUBSTANCE OF THE APPLICATION – OVERRIDING PUBLIC INTEREST

The application concerns documents establishing the lawfulness of fundamental aspects of FP6 and FP7 (e.g. calls of proposals, negotiation guidance documents, and guides to auditors about issuing audit certificates) in relation to Regulation 45/2001 and Directive 95/46/EC.

The following paragraphs outline the infringements of Regulation 45/2001 by the Research DGs.

DG RTD has admitted that in its external financial audits it has been infringing Regulation 45/2001 in a massive scale. The DG RTD initial answers to GestDem 2013/3753, http://www.asktheeu.org/en/request/610/r..., and GestDem 2013/3351, http://www.asktheeu.org/en/request/587/r..., show the extent of the infringements.

A glance at the publicly visible applications submitted pursuant to Regulation 1049/2001 to DG RTD, http://www.asktheeu.org/en/body/dg_rtd, and DG INFSO/CNECT, http://www.asktheeu.org/en/body/dg_cnect , strongly suggests that compliance with Regulation 45/2001 and Directive 95/46/EC was definitely not in the agenda of the Research DGs.

The two false statements (a purported EDPS ‘consultation’ and that the Research DGs have not been using subcontractors) and the non-existent legal basis of the four prior notifications of article 25 of Regulation 45/2001 DG ENTR DPO-3334.1, DG INFSO DPO-3338.1, DG RTD DPO-3398.1, DG MOVE DPO-3420.1 prove the illegalities. In view of the definition of ‘controller’ in article 1, second indent, of Commission Decision 597/2008 it is very likely that several officials have incurred the liabilities of article 49 of Regulation 45/2001, the Staff Regulations, and article 1(3) of Regulation 1073/99 ‘dereliction of duty by officials’. Furthermore, the false statements are likely an offence.

From the application GestDem 2013/3350 about article 25 of COM(2011) 810 Horizon 2020 Rules of Participation, http://www.asktheeu.org/en/request/horiz..., it appears that the Research DGs became bolder in their policy of disregarding Regulation 45/2001, Directive 95/46/EC, and the Schecke Judgement of the Court of Justice. That nearly five months after the submission of the application DG RTD has not released a single paragraph shows that the Research DGs and a few other Directorates-General wish to escape public scrutiny in so far Horizon 2020 and compliance with Regulation 45/2001 and Directive 95/46/EC is concerned.

An all-time low was reached when with the Commission services caused the President of the Commission to misrepresent elementary facts to the Ombudsman, Ares(2013)2952891 - 30/08/2013, http://www.asktheeu.org/en/request/583/r..., in their attempt to prevent the release of information about the DG INFSO risk-based audits.

In the light of the above considerations, the Secretariat-General is obliged to diligently search for documents and inform the applicant whether documents are held.

Having due regard to the two objects of the application, first, the release of documents about the compliance of FP6 and FP7 with Regulation 45/2001 and Directive 95/46/EC, and second the release of documents about the illegalities of the Research DGs, it is self-evident that there is an overriding public interest for the full release of all documents.

The undersigned respectfully points out that any reliance on the mandatory exceptions of article 4(1)(a) of Regulation 1049/2001 to refuse full access will be both outright absurd and unlawful. Deliberate and grave infringements of Regulation 45/2001 and Directive 95/46/EC are by definition the very antithesis of the public interest.

4. CONFIRMATORY APPLICATION

The confirmatory application concerns all requests of the initial application, expect those under (5), (10), (15), (20), (25), and (30).

Yours faithfully,

Mr. Orestis BEKAS

Direction générale de la recherche et de l’innovation

1 Attachment

 

Dear Mr Bekas,

 

Thank you very much for your email of 14/11/2013 in relation to your
application for access to documents registered under the reference Gestdem
2013/3912 sent at 12:01.

 

We have noted that in the above mentioned email no reference is made to
our email dated 14/11/2013 sent at 11:52 in reply to your proposal to use
a document sharing facility.  On the contrary, in your confirmatory
application, you assert that DG RTD has not provided a response to your
suggestion. In light of this element and of the fact that our reply was
sent at 11:52, that is to say a few minutes before you sent your
confirmatory application, we would like to ask you hereby to confirm
whether you maintain the latter or prefer to wait until we send you our
final reply.

 

In case you still wish to submit a confirmatory application, we will of
course transmit it immediately to the SG upon receipt of your
confirmation.

 

We would like to apologise again for the unexpected delay in handling your
request which is due to the fact that for efficiency purposes, and
considering our limited resources, the processing of your application was
suspended pending the results of our lengthy exchanges on our meeting
proposal.  We thank you very much in advance for your kind understanding
and would like to reassure you hereby that contrary to your assumptions,
this delay is not the result of any wrong intention on our behalf.

 

We look forward to hearing from you soon.

 

Yours sincerely,

 

Silvia BOJINOVA

Head of Unit

 

[1]Description: cid:image001.png@01CDDFB2.68871B70

European Commission

DG Research & Innovation

R5

 

ORBN 09/151

B-1049 Brussels/Belgium

+32 229-85891

[2][email address]

 

[3]http://ec.europa.eu/research

 

 

References

Visible links
2. mailto:[email address]
3. http://ec.europa.eu/research

Dear Research and Innovation (RTD),

Thank you for the emails of 14 and 18 November concerning GestDem 2013-3912, the contents of which are fully noted.

In the interests of transparency, the confirmatory application lodged on 18 November is hereby withdrawn. The undersigned will therefore expect that DG RTD will provide its initial response within the time-frame of the Regulation 1049/2001, that is to say in the next 15 working days.

For the sake of completeness the applicant will take this opportunity to make some further observations, which are at the core of the underlying substance of the application.

I. DG RTD E-MAIL OF 14 NOVEMBER

In view of the two applications GestDem 2013-3659 and 2013-3638 lodged with DG RTD – especially the confirmatory applications for which DG RTD will assist the Secretariat-General in its handling under article 10 of Commission Decision 937/2001 - it must have been obvious to DG RTD that the applicant is well versed in the substance of FP6 and FP7.

There are numerous publications of DG RTD and DG INFSO/CNECT (the two foremost Directorates-General managing FP6, FP7 and Horizon 2020) that explain in full detail how FP6 and FP7 were organised and run. For instance, Annex 5 of the DG RTD 2011 Annual Activity Report “Internal Control Template for Budget Implementation” provides a great deal of information about the FP7 environment.

FP6 & FP7 calls for proposals, FP6 & FP7 guides for negotiations, FP6 & FP7 guides to financial statements, FP6 & FP7 guides on certificates of financial statements, even the partially released FP6 & FP7 Audit Manuals, provide a wealth of information about the measures and the underlying logic of DG RTD.

An application under Regulation 1049/2001 concerns the release of documents only. The applicant has described at length what in his view are manifest infringements of Regulation 45/2001 are and the national laws transposing the provisions of Directive 95/46/EC; DG RTD has apparently regarded the applicant’s view as “accusations”. Whether the two false statements of DPO-3398.1 are “accusations” or “manifest infringements of several provisions Union law” is obvious.

The sole purpose of the applicant’s lengthy analysis was twofold: first, to establish that DG RTD ought to have drawn up documents, and second that the documents were the subject of an overriding public interest. Put differently, Regulation 1049/2001 is not a forum for discussing with an Institution legal matters; the applicant’s legal arguments were solely made in the sake of full transparency that is to say to argue for the full release of all requested documents. This ‘no discussion’ conclusion is supported by the some two dozen initial and confirmatory applications/responses lodged via asktheeu.org with DG RTD and DG CNECT under Regulation 1049/2001; applicants have advanced arguments and the Commission services have provided responses.

Therefore, the most kind offer of DG RTD – going out of its way and clearly beyond what Regulation 1049/2001 prescribes – to “provide you with a better understanding on how we work, in light of your concerning accusations” in a face-to-face meeting/video-conference would not serve, in so far the applicant is concerned, any useful purpose. In a nutshell, the applicant believes that he is adequately informed about how DG RTD works.

II. UNDELYING SUBSTANCE

In my view, there is a far more significant issue at the core of the present application. This is described below.

There is no doubt whatsoever that the Research DGs have disregarded in a wholesale manner Regulation 45/2001 and Directive 95/46/EC in FP5 (in so far external audits were concerned), and the entire FP6 and the entire FP7. It seems that the Research DGs have gone further down the road of disregard, since in Horizon 2020 and in article 25 of the proposal COM(2011) 810 the forthcoming Horizon 2020 model grant agreement will go further than article 13 and 22(4) of the FP7 model grant agreement in so far personal data processing of third parties is concerned.

It should also be borne in mind that the Commission has both a primarily responsibility of formulating the proposals for Regulations regarding the research programmes (e.g. 2321/2002, 1906/2006) and is also managing alone their execution. It is evident that the Commission is both intrinsically involved in the legislative process and solely responsible for the execution of the research programmes. A sizable part of the research budget is allocated to cover the expense of the very same administrative departments that formulate the proposals for Regulations. In such a situation, it would not be entirely surprising if the administrative departments – which in fact carry out all the work regarding the proposals for Regulations – do not ‘look after’ their ‘own private interests’ as large administrative organisations. The situation of the Research DGs is very different from those of DG COMP (acts to enforce competition and stamp out anti-competitive practices) or DG AGRI (it has had no role in disbursing the subsidies, which is handled by the Member States).

Due regard is to be had that the Research DGs effectively control the entire funding mechanism. In other words, the Research DGs are the dominant players in the research programmes. Participants in FP6 & FP7 have been extremely reluctant to raise their concerns about the dominant position of the Research DGs and their ‘heavy handiness’, for the simple reason that the Research DGs could treat them unfavourably. Regarding proposal evaluation, the lack of a redress mechanism in FP6 and its embryonic nature in FP7 prove this point.

Calls for proposals are by definition very competitive. The Research DGs are supposed to select the best ones for negotiations and ultimately for funding. The negotiation process is supposed to trim unnecessary parts of a research project. Once a contract/agreements is signed, then the Research DGs carry out a comprehensive scientific and financial management (e.g. yearly reviews). The payment of the research subsidies is absolutely conditional on the express approval of every single deliverable. Except of subsidies aiming solely at individual researchers (e.g. Marie-Curie), the bulk of the research projects are about the scientific and technological work, and their deliverables. An Integrated Project or a STREP is NOT about subsidising the work of researchers. It is solely about the contractual deliverables. The very competitive nature of calls of proposals goes a long way in ensuring the financial interests of the Union.

To illustrate the point that research projects are about deliverables, and not about researchers’ work, the following absurd example will be considered. Assume that the contractual work of FP7 beneficiary takes two full-time persons to carry out, researcher A and B, each of whom works full-time. All work is carried out by researcher A only. What researcher B does is read out, letter by letter, Annex I of the grant agreement from the first to the last page; he/she reads out aloud every letter in every word, including punctuation characters. When he/she finishes the reading of the last page, he/she reads Annex I in reverse order, from the last page to the front. He/she does only this type of mechanical reading all the time. Then researcher B starts again. He/she is working 100% to a FP7 project, even though his/her work is entirely unproductive. The FP7 beneficiary charges both researchers A and B to the project. In the event the FP7 beneficiary fulfilled its contractual obligations, DG RTD is contractually obliged to pay out the contractual subsidy. In the event of a financial audit, the auditor is NOT lawfully entitled to make enquiries about what exactly researcher A or B did or did not do. Even in a technical audit, the work of researchers A & B is beyond its scope; the technical audit will be about the FP7 beneficiary’s work. In sum, there is no lawful way a Research DG, or an authorised representative will be entitled to make enquiries about what researcher B had been doing, unless researcher B discloses it to a Research DG. In the event that researcher B in no longer employed by the FP7 beneficiary (may be the repetitive reading drove him/her mad), there is no lawful way to ‘check’ what researcher B was doing.

A realistic example corresponding to the ‘absurd’ one is when two researchers work at exactly 50% of their capacity, yet declaring 100% of their work-time to a FP6/FP7 project. This line of arguments proves the meaningless of insisting on checking time-sheets in FP6 & FP7, or the short profiles, which are illegal anyway without the express consent of the researchers -third parties to the audited projects.

A FP6 & FP7 project is miles apart from subsidies on cereal production. In the domain of agricultural subsidies, the farmers are entitled to the subsidy as a matter of Union law; the right to the subsidy is universal across all farmers fulfilling the applicable conditions. The farm subsidies are neither paid out pursuant to a private law contract, as a FP7 grant agreement, nor does DG AGRI monitor the farm production with yearly reviews (assisted by independent experts). The personal data processing of the Research DGs in external financial audits is in effect a transposition of the logic of the farm and regional subsidies to FP6 & FP7 that is entirely meaningless in so far the pursued aims of FP6 & FP7 are concerned.

Seen in the above light, the short profiles of FP6 & FP7 call for proposals (i.e. short CVs), the inclusion o short profiles in most FP6 contracts and FP7 grant agreements, the ‘recommendations’ of guides on certificates of financial statements to process personal data of researchers charged to projects, and above all, the external financial audits do not have any real useful purpose. They are a ‘carry over’ from the FP4 and partially from FP5, when Regulation 45/2001 and Directive 95/46/EC were not in force.

Insisting on personal data processing of third parties, especially in contravention of Regulation 45/2001, shows an administration that cares only about formalism and not at all about the substance of the research programmes. The Research DGs cannot argue that their ‘obsession’ with the processing of personal data of third parties has anything to do with cutting edge research, or the protection of the Union’s financial interests. If indeed that was the opinion of the Research DGs, then they ought to have convinced the Commission to table a proposal before the Parliament and the Council to male such kind of personal data processing of third parties lawful. That the Research DGs did not do so tells a lot. It proves that there can be no substantial argument in support of processing personal data of third parties in FP6, FP7 and Horizon 2020.

The Research DGs have known the above all along. That is precisely why the express provision of the FP4 and FP5 model contracts of keeping certified records of time spent in a project was dropped from the FP6 model contract. Regulation 45/2001 made such a provision unlawful.

Yet, in FP6 and FP7 the Research DGs continued to process personal data in contravention of Regulation 45/2001. Apparently, either they could not adapt their approach and practices to comply with Regulation 45/2001, or they were unwilling, or both. To avoid being outright non-compliant with Regulation 45/2001, the Research DGs concealed their personal data processing policies in some aspects. This applies in particular to the external financial audits – articles FP6.II.29 and FP7.II.22. The contractual terms obliging an auditee to provide ‘all information necessary’, was a veiled reference to the personal data of third parties to the audited projects, that is to say the researchers. In calls for proposals the Research DGs were upfront with the disregard of Regulation 45/2001; they went on with the short profile requirements regardless of what article 5 of Regulation 45/2001 meant for lawfulness.

In view of the Schecke Judgement of the Court of Justice, it is absolutely certain that the personal data processing of third parties to FP6, FP7 and Horizon programmes is outright unlawful. It is a very curious coincidence that DG INFSO DPO-3338.1, the archetypal of the bogus prior notifications covering the external financial audits of the Research DGs, was drawn up about three months after the Schecke Judgment.

In the Judgement in the case T-412/05, M v European Ombudsman, the Court of First Instance held, essentially, in §138 that Institutions and bodies were obliged to adapt their practices in accordance to the provisions of Regulations 45/2001, once it came into force. Apparently, the Research DGs chose not to do so.

Disregarding Regulation 45/2001 for the last ten years, reaching the point of filing an entirely bogus prior notification with two false statements like DG RTD DPO-3398.1 is in itself extremely disturbing.

What is far more disturbing is that the concealed policies of the Research DGs to disregard Regulation 45/2001 is very probably a symptom of a far more worrying problem, namely their inability or unwillingness of the Research DGs to modify their working practices to comply with Community and national law about personal data protection.

When administrative departments cannot change their approach and practices to comply with the Law, and this lasts for over ten years, then this begs the question of how on earth such departments are supposed to mange cutting edge research that is supposed to thrust EU to the forefront of technology, making the EU the most technologically advanced economy of the world.

A cynical answer to the above rhetorical question might be that the Research DGs care much more about the opinions of the European Court of Auditors on the regularity of payments, and much less whether the tens of billions spent in FP6 and FP7 have fulfilled the aims of the EU legislature, and ultimate of the EU taxpayer.

The above arguments show that the insistence of the Research DGs in illegally processing personal data of third parties cannot have a really useful purpose in managing cutting edge research or safeguarding the Union’s financial interests.

Seen under the spotlight of the above considerations, the overriding public interest for a full release of all requested documents has been further enhanced.

III. CONCLUDING REMARKS

I hope that DG RTD will pay some attention to the above points.

For the avoidance of any doubt, it is stated once more the confirmatory application is hereby withdrawn, expecting that DG RTD will provide an initial response in the next 15 working days.

Yours faithfully,

Mr. Orestis BEKAS

Direction générale de la recherche et de l’innovation

1 Attachment

Dear Mr Bekas,

 

We refer to your email in which you make a request for access to
documents, registered under the above mentioned reference number.

 

We would like to sincerely apologise for the extended time-frame needed to
finalise the handling of your request. We would like to assure you that we
are doing our utmost to provide you with our reply as soon as it is ready
and approved.

 

We truly apologise for this unexpected additional delay and for any
inconvenience this may cause.

 

Thank you very much in advance for your patience and kind understanding.

 

Yours sincerely,

 

Silvia BOJINOVA

Head of Unit

 

[1]Description: cid:image001.png@01CDDFB2.68871B70

European Commission

DG Research & Innovation

R5

 

ORBN 09/151

B-1049 Brussels/Belgium

+32 229-85891

[2][email address]

 

[3]http://ec.europa.eu/research

 

 

References

Visible links
2. mailto:[email address]
3. http://ec.europa.eu/research

Dear Research and Innovation (RTD),

Thank you for letting me know the status of the DG RTD initial response.

I would like to take this opportunity to draw DG RTD's attention to the bigger picture.

1. Five months after the lodging of the application the only document DG RTD has released are the prior notifications DPO-978, DPO-2382 and DPO-3398. Under Commission Decision 597/2008, upon a citizen's application the Data Processing Officer must release a prior notification within two weeks. This means that DG RTD has scarcely been compliant with the spirit of transparency.

2. The prior notification DPO-3398.1 is the culmination of the DG RTD concealed policy to disregard Regulation 45/2001 and deceive the public.

3. The prior notifications DPO-978 and DPO-2382 are silent about the data processing of third parties to FP7 proposals and FP7 grant agreements, which concern the the most extensive part of the personal data processing.

4. DG RTD has made serious misrepresentations about the IT tools of DPO-3398 in its initial response to GestDem 2013/3351. This is the point of the GestDem 2013/3351 applicant in http://www.asktheeu.org/en/request/perso....

5. In the DG RTD initial response to GestDem 2013/3350 about article 25 of the proposal for Horizon 2020 COM(2011) 810 and that article's compatibility with Regulation 45/2001, Directive 95/46/EC, and the Schecke Judgement of the Court of Justice, http://www.asktheeu.org/en/request/585/r..., DG RTD relied on article 4(3) to refuse access, flagrantly disregarding the settled case-law of the Courts of the Union that for legislative matters the widest possible transparency is the norm. Moreover, at the time DG RTD adopted its position on GestDem 2013/3350 the Parliament had already adopted the Horizon 2020 proposals and the Union Presidency had hosted the Horizon 2020 kick-off meeting.

In view of the above, it is nearly certain that DG RTD pays lip service to transparency. Regretfully, I can only be pessimistic about whether DG RTD will carry out an adequate search for documents. Honestly, I expect from the DG RTD initial response some kind of a bunch of excuses for a minimal release of documents, which will give to DG RTD a fig leaf of pretending transparency.

Yours faithfully,

Mr. Orestis BEKAS

Mr. Orestis BEKAS

Dear Research and Innovation (RTD),

This is kind reminder that DG RTD has not released a single INTERNAL document, even though (i) five and a half months have run since the registration of the application and (ii) on 14 December DG RTD stated that the initial reply was in the finalisation stage.

I would therefore be obliged of DG RTD would provide me with the initial reply without further delays.

Yours faithfully,

Mr. Orestis BEKAS

Direction générale de la recherche et de l’innovation

1 Attachment

Dear Mr Bekas,

We refer to your request for access to documents registered under the
above mentioned reference number.

We have taken good note of your kind reminder of 14/01/2013.

We sincerely regret that we were not in a position to complete the
handling of your application within its time limit. This is due to the
fact that your request concerns potentially a very large number of
documents possibly held by different services which need to be identified
and assessed individually. Moreover, following the recent reorganisation
of DG RTD and the resulting transfer of  the access to documents files to
Unit J1 (Legal Unit of the Common Support Centre), a fresh reassessment of
your request has been undertaken with a view to grant you the widest
access as possible.

We would like to assure you that we are committed to the principle of
transparency and we will endeavour to do our utmost to provide you with
our reply by the end of the month.

We truly apologize for this unexpected additional delay and for any
inconvenience this may cause.

We thank you very much in advance for your patience and kind
understanding.

Yours faithfully,

Liliane DE WOLF

Head of Unit

 

[1]Description: cid:image001.gif@01CF1087.1393DAC0

European Commission

DG Research & Innovation

J1 Common Legal Support Service

 

ORBN 01/037

1049 Brussels/Belgium

+32 229-61073

[2][email address]

 

[3]http://ec.europa.eu/research

 

References

Visible links
2. mailto:[email address]
3. http://ec.europa.eu/research

Direction générale de la recherche et de l’innovation

3 Attachments

Dear Mr Bekas,

 

We refer to your email dated 24/07/2013 in which you submit a request for
access to documents, registered on 25/07/2013 under the above mentioned
reference number.

In relation to points 3, 8, 13, 18 and 23 of your initial request we were
pleased to remit the documents corresponding to these respective points on
25/09/2013.

 

For present purposes, the last part of your application, which has
undergone assessment from several responsible Services, concerns the
following remaining points:

 

·         As far as point 1 is concerned we wish to provide you with the
below links, which falls under the remit of your request concerning FP6
Calls for Proposals:

 

[1]ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200201_en.pdf

 

[2]ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200202_en.pdf

 

[3]http://cordis.europa.eu/fp6/sp1_wp.htm

 

[4]ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200204_en.pdf

 

[5]ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200205_en.pdf

 

[6]ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200206_en.pdf

 

[7]ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200207_en.pdf

 

[8]ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200208_en.pdf

 

·         With regard to point 6 of your request we are pleased to inform
you that we have identified twelve documents corresponding to FP6 Guides
for Negotiation. (Please consult the annex attached for these documents).

 

·         With regard to point 11 we have identified thirty documents,
which have been identified as falling under the remit of this request.
(Please consult the annex attached for these documents).

 

·         In respect to point 16 we have identified four documents
corresponding to your request. (Please consult the annex attached for
these documents).

 

·         With regard to points 2, 12, 17, 21, 22, 24 26, 27, 28, 29 and
30 of your request, we regret to inform you that no corresponding
documents exist. Please kindly note that in order to assess the five last
points a search was  conducted in correlation with the Audit Service of DG
RTD. Consequently, your application is therefore devoid of purpose in
respect to all eleven mentioned points.

 

 

We would like to take this opportunity to apologise again for the overrun
of the deadline in the processing of your application and thank you for
your kind patience.

 

 

Yours faithfully,

 

Liliane DE WOLF

Head of Unit

 

[9]cid:image001.gif@01CF0AE9.BBA1E200

European Commission

DG Research & Innovation

J1

 

ORBN 01/037

1049 Brussels/Belgium

+32 229-61073

[10][email address]

 

[11]http://ec.europa.eu/research

 

 

References

Visible links
1. ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200201_en.pdf
2. ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200202_en.pdf
3. http://cordis.europa.eu/fp6/sp1_wp.htm
4. ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200204_en.pdf
5. ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200205_en.pdf
6. ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200206_en.pdf
7. ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200207_en.pdf
8. ftp://ftp.cordis.europa.eu/pub/fp6/docs/wp/sp1/sp1_decision_wp_200208_en.pdf
10. mailto:[email address]
11. http://ec.europa.eu/research

Direction générale de la recherche et de l’innovation

1 Attachment

Dear Mr Bekas,

 

We refer to your email dated 24/07/2013 in which you submit a request for
access to documents, registered on 25/07/2013 under the above mentioned
reference number.

 

In respect to our previous communication sent to you on 04/02/2014 it has
come to our attention that the zip file attached may not have been
readable. Due to the large number of documents concerned, which we wish to
remit to you under the scope of your initial request, we propose to send
the concerned documents in three separate emails.

 

We apologise for this unfortunate technical issue and thank you very much
for your understanding.

 

Kind regards,

 

The Access to Documents Team of DG RTD

Unit RTD.J1

[1][email address]

 

References

Visible links
1. mailto:[email address]

Direction générale de la recherche et de l’innovation

1 Attachment

Dear Mr Bekas,

 

We refer to your email dated 24/07/2013 in which you submit a request for
access to documents, registered on 25/07/2013 under the above mentioned
reference number.

 

Please find attached the second corresponding zip folder enclosing the
concerned documents.

 

Kind regards,

 

The Access to Documents Team of DG RTD

Unit RTD.J1

[1][email address]

 

 

 

 

References

Visible links
1. mailto:[email address]

Direction générale de la recherche et de l’innovation

1 Attachment

Dear Mr Bekas,

 

We refer to your email dated 24/07/2013 in which you submit a request for
access to documents, registered on 25/07/2013 under the above mentioned
reference number.

 

Please find attached the final corresponding zip folder enclosing the
concerned documents.

 

Kind regards,

 

The Access to Documents Team of DG RTD

Unit RTD.J1

[1][email address]

 

 

 

References

Visible links
1. mailto:[email address]

Direction générale de la recherche et de l’innovation

1 Attachment

Dear Mr Bekas,

 

We refer to your email dated 24/07/2013 in which you submit a request for
access to documents, registered on 25/07/2013 under the above mentioned
reference number.

 

We would like to inform you hereby that points 4, 9, 14 and 19 of your
initial request are devoid of purpose.

 

Additionally, we sincerely hope that you did not encounter technical
difficulties in accessing the documents previously provided. If this has
been the case, please do not hesitate to let us know and we will act to
ensure that printed copies of the concerned documents are sent to your
address.

 

Yours faithfully,

 

Liliane DE WOLF

Head of Unit

 

[1]cid:image001.gif@01CF0AE9.BBA1E200

European Commission

DG Research & Innovation

J1

 

ORBN 01/037

1049 Brussels/Belgium

+32 229-61073

[2][email address]

 

[3]http://ec.europa.eu/research

 

References

Visible links
2. mailto:[email address]
3. http://ec.europa.eu/research

Mr. Orestis BEKAS

Dear Research and Innovation (RTD),

I would like to thank the J1 Unit for the initial response to the application GestDem 2013/3912 and the disclosure of so many documents.

The attachments to the emails of 4 and 5 February were well received, meaning that I was able to read the documents.

For your information, I intend to submit a confirmatory application, the main reason being that the disclosed documents seem to be to some extent immaterial to the kind of the documents applied for.

Considering that no document was disclosed as regards the authorisation to publish calls for proposals and negotiations guides, this gives rise to host of questions concerning compliance with Regulation 45/2001, including the responsibilities of senior officials under article 49 of that Regulation.

Finally, the DG RTD notion that nearly a dozen of the specific requests were 'devoid of purpose' on account that no documents were identified is highly inappropriate for this application: (a) for an application under Regulation 1049/2001 the notion 'devoid of purpose' is found only in litigation before the General Court and in very specific circumstances that are sharply different from this application; (b) it gives the impression that the applicant has lodged some sort of a 'meaningless' request, whilst in this application the very opposite is the case - specifically the disclosure of documents in order to scrutinise the compliance with Regulation 45/2001 of the entire FP6 and FP7. In view of the two false statements of the DG RTD prior notification DPO-3398.1 and its wholly spurious legal basis, I respectfully suggest that the J1 Unit ought to have refrained from relying on the notion of 'devoid of purpose'; a plain statement like 'no documents were identified' would have sufficed.

Yours faithfully,

Mr. Orestis BEKAS

Dear Research and Innovation (RTD),

Referring to the application pursuant to Regulation 1049/2001 GestDem 2013/3912, this is a confirmatory application for the requests under numbers 2, 6, 12, 17, 22, 24, 26, 27, 28.

The DG RTD very kindly provided an extensive initial reply on 4 February 2014, http://www.asktheeu.org/en/request/fp6_f..., http://www.asktheeu.org/en/request/fp6_f..., http://www.asktheeu.org/en/request/fp6_f..., http://www.asktheeu.org/en/request/fp6_f..., which has been appreciated.

Having gone through the released documents and those for which DG RTD provided links to Europa, I submit that there is still an open question regarding the authorisation to publish so many guides (e.g. calls for proposals, negotiations, guidelines to auditors) entailing personal data processing of the staff of the FP6 and FP7 participants. The documents DG RTD granted full access do not provide the slightest hint about such kind of an authorisation.

Whilst the confirmatory application seeking a review of the search for documents of DG RTD may seem too formalistic, or naive, or even bordering disrespect, I submit that it is normal to expect that the senior officials who caused the publications of the guides had obtained an authorisatiobn pursuant to the Commission rules of procedure (delegation and sub-delagation).

Having said the above, I believe that the confirmatory application is justified.

Yours faithfully,

Mr. Orestis BEKAS

Direction générale de la recherche et de l’innovation

Dear Sir,

Thank you for your email dated 22/02/2014.

We hereby acknowledge receipt of your confirmatory application for access to documents, which was registered on 24/02/2014 under reference number GestDem 2013/3912 – Ares(2014) 477352.

In accordance with Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, your application will be handled within 15 working days.

The time limit will expire on 17/03/2014. In case this time limit needs to be extended, you will be informed in due course.

Yours faithfully,

Carlos Remis
SG.B.4.
Transparence.
Berl. 05/329.

Afficher les sections citées

Direction générale de la recherche et de l’innovation

8 Attachments

Dear Mr Bekas,
 
We refer to your email dated 24/07/2013 in which you submit a request for
access to documents, registered on 25/07/2013 under the above mentioned
reference number.
 
We also refer to our initial reply of 4/02/2014 and 5/02/2014.
 
The purpose of the present email is to provide you with a complementary
response in relation to your above mentioned application, given the
additional corresponding documents which were identified by our Services
following further research.
 
We take this opportunity to correct some clerical errors which have been
identified in the text of our initial reply and for which we sincerely
apologise.
 
Firstly, we have noted that point 7 does not seem to have been addressed
in the initial reply. This is the result of a clerical error as DG RTD
granted you access to twelve documents in respect to this point. Point 6
of your request, therefore did not apply.
 
Secondly in respect to point 17, four documents were identified as
relevant. Point 16 therefore did not apply (and not vice versa as
erroneously indicated as a result of the typographical error in the
initial reply.)
 
As far as points 21 and 22 are concerned, no corresponding documents had
been identified in the framework of the initial reply. Following an
additional inspection of our files, we have identified the attached
document which might interest you. Please kindly note that the "adoption
procedure" consisted thus in a letter sent by the Director-General of  DG
RTD to its colleagues in the other DGs, with the Financial Guide in annex,
informing them that this document was the final version discussed with
their respective services, and of its intention to publish it following
this final agreement.
 
 
Our Services have nevertheless also confirmed that they were not aware of
any specific official administrative act(s) conferring on senior officials
the authority to duly adopt such administrative decisions and the
assumption by them of the responsibilities for the lawfulness of those
decision, as per your request. The DGs can adopt these guidelines, as they
are providing interpretation on the legal document adopted by the
Commission itself, namely the Grant Agreement.
 
Please kindly note that point 21 of your application remains thus not
applicable.
 
As far as point 24 of your request is concerned, we would like to stress,
for your better understanding, that the absence of documents is due to the
fact that the opinion of the Legal Service is not required for this type
of document (namely Guidelines).
 
Furthermore, in relation to point 27 of your application, our services
have identified the attached six notes from the Director-General of DG RTD
to the other Directors-General of the Research DG family concerning the
updates of the Guidance Notes for Beneficiaries and Auditors on FP7
Certificates issued by External Auditors. If we interpret Mr Bekas’
request in a wide sense, these documents could correspond to what he is
looking for. We are pleased to grant you full access to these notes below.
 
Please kindly note that the alternative point 26 of your application does
not apply.
 
We sincerely hope that the above additional elements will be useful to you
and thank you very much in advance for your kind understanding.
 
Yours sincerely,
 
Liliane DE WOLF
Head of Unit
 
European Commission
DG Research & Innovation
J1
ORBN 01/037
1049 Brussels/Belgium
+32 229-61073
[1][email address]
 
[2]http://ec.europa.eu/research
 
 
 

References

Visible links
1. mailto:[email address]
2. http://ec.europa.eu/research

Mr. Orestis BEKAS

Dear Research and Innovation (RTD),

Referring to the application GestDem 2013/3912 and the complementary reply of 7/3/2014 http://www.asktheeu.org/en/request/fp6_f..., I would like to sincerely thank DG RTD for the further full disclosure of 7 documents and the very detailed response.

Since DG RTD is confident that all pertinent documents have been identified and fully disclosed, the confirmatory application is entirely redundant. I therefore kindly withdraw the confirmatory application.

Yours faithfully,

Mr. Orestis BEKAS