FP6 & FP7 Programmes, suspension of a written procedure to adopt a Commission Decision

Direction générale de la recherche et de l’innovation n'avait pas les informations demandées.

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. Adoption of Commission Decisions by the written procedure in 2003 concerning the FP6 Programme

R1. The documents with which a senior official of DG RTD recommended to the Member of the Commission responsible for DG RTD the suspension of a written procedure in 2003.

R2. The documents drawn by DG RTD in 2003 with which the Member of the Commission responsible for DG RTD suspended the adoption of a Commission Decision by the written procedure in 2003.

R3. The documents with which a senior official of DG RTD recommended to the Member of the Commission responsible for DG RTD the re-launching of a suspended written procedure in 2003.

R4. The documents with which the Member of the Commission responsible for DG RTD re-launched in 2003 a suspended written procedure.

II. Adoption of Commission Decisions by the written procedure in 2007 concerning the FP7 Programme

R5. The documents with which a senior official of DG RTD recommended to the Member of the Commission responsible for DG RTD the suspension of a written procedure.
R6. The documents with which the Member of the Commission responsible for DG RTD suspended the adoption of a Commission Decision by the written procedure in 2007.

R7. The documents with which a senior official of DG RTD recommended to the Member of the Commission responsible for DG RTD the re-launching of a suspended written procedure.

R8. The documents with which the Member of the Commission responsible for DG RTD re-launched in 2007 a suspended written procedure.

Yours faithfully,

Kostas VITSOS

Direction générale de la recherche et de l’innovation

1 Attachment

Dear Mr Vitsos,

 

Thank you for your e-mail dated 11 July 2013.  We hereby acknowledge
receipt of your application for access to documents, which was registered
on 12 July 2013 under reference number GestDem2013/3651.

 

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 2
August 2013. In case this time limit needs to be extended, you will be
informed in due course.

 

Yours faithfully,

 

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 Vitsos,

 

We would like to assure you that your application is currently being
processed. However, we regret to inform you that, as your application
concerns a very large number of documents, their handling cannot be
carried out within the normal time limits set out in Article 7 of
Regulation (EC) N° 1049/2001.

 

Yet, 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) provides 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, we would kindly ask you whether you would agree
that we extend the deadline for handling your above mentioned application
until 30/09/2013.  Needless to say, we will try to finalise the handling
of your application for access to documents as fast as possible.

 

If you have any questions concerning this proposal, you can contact us by
email to: [1][email address]

 

Yours faithfully,

 

Silvia BOJINOVA

Head of Unit

 

[2]Description: Description: Description: Description:
cid:image001.png@01CDF26F.EF7D9990

European Commission

DG Research & Innovation

R5

 

ORBN 09/151

B-1049 Brussels/Belgium

+32 229-85891

[3][email address]

 

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

 

 

 

References

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

Dear Research and Innovation (RTD),

Thank you for your email of 16 August 2013 according to which DG RTD has found that my application concerns 'a very large number of documents', necessitating the application of article 6(3) of Regulation No 1049/2001.

I should admit that in my opinion this 'finding' is indeed astonishing, specifically that the application concerns a very large number of documents. It takes less than one minute to search the public register of Commission documents for the number of Commission Decisions for which DG RTD had been the lead service; there were 55 and 99 such Decisions in 2003 and 2007 respectively. Unless there had been an exceptional 'to and fro' regarding RG RTD Commission Decisions in 2003 and 2007, the number of suspended and relaunched written procedures to duly adopt such Decisions must less than ten (10). Consequently and contrary to the DG RTD 'finding', the number of documents at issue is very small.

It is also worth bearing in mind that in 2003 and 2007 the Commission adopted by way of Decisions (written procedure) the FP6 model contract and the FP7 model grant agreement respectively, for which there is host of significant issues about their compliance with Regulation No 45/2001 and that private law contracts are to be executed in good faith.

Notwithstanding the above, the DG RTD proposal to extend the time-limit of the initial answer to the end of September 2013 must be accepted.

Yours faithfully,

Kostas VITSOS

Direction générale de la recherche et de l’innovation

L'activité des services de la Commission européenne étant réduite durant
le mois d'août, vos demandes d'accès aux documents seront traitées dans
les meilleurs délais. Toutefois, certains retards peuvent se produire, en
particulier lorsque le traitement des données exige la consultation des
administrations nationales, d’organisations extérieures ou d’autres
services.

*  *  *

Die Tätigkeiten der Dienststellen der Europäischen Kommission sind im
August reduziert; Ihre Anträge auf Zugang zu Dokumenten werden dennoch so
schnell wie möglich bearbeitet. Allerdings können Verzögerungen auftreten,
insbesondere wenn die Berarbeitung der Anträge die Konsultierung der
nationalen Verwaltungen, externer Organisationen oder anderer
Dienststellen erforderlich macht.

* *  *

The activity of European Commission departments is likely to be reduced
during August.  We will handle  your requests for access to documents as
soon as possible.  However, some delays may occur, especially where the
processing of data requires the consultation of national administrations,
external organisations or other services.

 

Dear Research and Innovation (RTD),

This is to kindly request DG RTD to inform me about the status of the initial reply.

On the 21st of August DG RTD notified me that it was necessary to extend the deadline of the initial reply to the 30th of September and sought my agreement to this extension. By email of the same day the applicant's agreement to the extension was notified to DG RTD.

So far DG RTD has not provided the initial reply. The request concerns a few documents for which no exception of article 4 of Regulation No 1049/2001 is applicable. The documents in question would establish, among others, whether the written procedure - as it stood at the time according to the Commission's Rule of Procedure - for the adoption of the FP6 model contract and the FP7 grant agreement was properly followed. The self-evident foot-dragging of the Secretariat-General to release proper copies of day notes of year 2007, especially for March - April 2007, lends support to the lingering doubts about the proper adoption of the FP7 model grant agreement. The provisions of article 13 of Annex II of the FP7 model grant agreement about rights of personal data of legal persons - which are non existent according to the case law of the EU Courts and also common sense - clearly shows that there is something very fishy about the model itself.

It is self-evident that the underlying matters are "deadly" serious and that DG RTD should not expect it will be able to escape the public scrutiny.

In the light of the foregoing, I would appreciate if DG RTD would promptly provide me with the initial reply.

Yours faithfully,

Kostas VITSOS

Direction générale de la recherche et de l’innovation

1 Attachment

Dear Mr Vitsos,          

We refer to your email dated 11 July 2013 in which you make a request for
access to documents, registered on 12 July 2013 under the above mentioned
reference number.

After careful examination of our files, we regret to inform you that no
documents were found that would correspond to the description given in
your application. We are, therefore, unable to handle your application.
Please kindly note that the Commission's proposals for FP6 and FP7 were
adopted by oral procedures in 2001 and 2005 respectively.

We would like to apologise for the extended time which was needed in order
to process your request for access to documents.  This is partly due to
the fact that your application referred to written procedures in 2003 and
2007, but also that the requested documents were potentially held by
different Services which must be consulted.

We can assure you however that we did our utmost to provide you with our
final reply in the shortest delays.

Yours faithfully,

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 your email 2 October 2013, which is understood as the DG RTD initial reply.

First, I would like to note that the DG RTD initial reply

" (.....) we regret to inform you that no
documents were found that would correspond to the description given in your application. We are, therefore, unable to handle your application. (......) "

does not expressly state that no documents exist. In my view, the reply leaves open an interpretation that the application was not precise or that DG RTD somehow 'misinterpreted' the application.

The requested documents aim at establishing whether in 2003 and in 2007 a DG RTD initiated a written procedure for the adoption of a Commission Decision was suspended and relaunched. In essence, the DG RTD initial reply appears as intended to suggest that in 2003 and in 2007 DG RTD did not suspend the adoption of a Commission Decision by the written procedure.

Yet, the DG RTD initial reply has fallen short of expressly stating that no suspension took place. Furthermore, due regard is to be had to the following facts:

- So far, the Secretarial-General has persistently avoided to release certified copies of day notes of 2007 pursuant to applications according to Regulation No 1049/2001. One such example is SEC(2007)1329/4 in GestDem 2013/3759, http://www.asktheeu.org/en/request/copie....

- The DG RTD initial reply does not bear an Ares number.

- It is now public that DG RTD has been in the business of false declarations and deceits in the prior notification of article 25 or Regulation No 45/2001 DPO-3398. This necessarily implies that DG RTD has destroyed - solely by its own conduct - the public's confidence in telling the truth.

In view of the above, I would appreciate if DG RTD would:

R1. let me know the Ares reference number of the initial reply;

R2. clarify in in a crystal-clear way whether in 2003 and in 2007 a DG RTD initiated written procedure for the adoption of an autonomous Commission Decision was suspended.

Yours faithfully,

Kostas VITSOS

Dear Research and Innovation (RTD),

Please pass this message, which is a confirmatory application, to the Transparency Unit of the Secretariat-General.

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

Dear Secretariat-General,

This is a confirmatory application pursuant to Regulation No 1049/2001. It is respectfully requested that the Secretariat-General review the DG RTD initial reply.

In handling the confirmatory application the Secretariat-General might search its own document management systems for written procedures to adopt an autonomous Commission Decision, for which procedures DG RTD had tabled a proposal for a Decision in 2003 and in 2007 and the written procedure was suspended.

It is kindly requested that the Secretariat-General take into consideration my request for clarification addressed to DG RTD on 9 October 2013, and which DG RTD has not responded to,
http://www.asktheeu.org/en/request/fp6_f.... The lack of response indicates that the confirmatory application is justified.

Yours faithfully,

Kostas VITSOS

Direction générale de la recherche et de l’innovation

1 Attachment

Dear Mr Vitsos,

 

Thank you for your email dated 9 October 2013. We hereby acknowledge
receipt of your request for the following information:

 

"- the ARES reference number of the initial reply [to the application for
access to documents registered under Gestdem 2013/3651]; [and]

- (…) whether in 2003 and in 2007, a DG RTD initiated written procedure
for the adoption of an autonomous Commission decision [concerning FP6 and
FP7] was suspended."

 

Please note that the above mentioned request for information does not fall
under the scope of Regulation (EC) No 1049/2001 of the European Parliament
and the Council regarding public access to European Parliament, Council
and Commission documents, but is governed by the Code of good
administrative behaviour for staff of the European Commission in their
relations with the public.  Accordingly, you shall receive a reply to your
request within 15 working days.

 

Yours faithfully,

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),

This is to respectfully PROTEST about the DG RTD arbitrary and unlawful disregard of my confirmatory application GestDem 3561/2013 of 23/10/2013, and its classification as a request for information.

My request for clarification of 9/10/2013 were solely in the context of the administrative procedure of Regulation No 1049/2001, http://www.asktheeu.org/en/request/fp6_f....

Apparently, DG RTD:
- misconstrued my confirmatory application of 23/10/2013,
- ‘exploited’ the limitation of the asktheeu.org emails ,in that a single email address is used by both the initial & confirmatory application,
- effectively ‘blocked’ the transfer the confirmatory application to the Secretariat-General, something that alone constitutes a deplorable ‘act’.

That DG RTD does not care all this has been happening in full public view tells a lot about the underlying substance.

In the applicant’s view, legality and transparency will prevail over the attempts of administrative departments to conceal from the public their unlawful acts. Any outcome different than full transparency would be like turning back the clock to the cloudy periods of the 30s, when totalitarian regimes were on the ascendance in several European countries.

In view of all the above, the applicant was forced to re-lodge the confirmatory application via his private email address. It is provided herein as an annex. The applicant will continue to dispatch further correspondence with the Secretariat-General about GestDem 3561/2013 via asktheeu.org in order to ensure full public view.

Finally, it would be appreciated if DG RTD would continue to dispatch asktheeu.org emails concerning GestDem 3561/2013 to the Secretariat-General.

**********************************************
ANNEX

Email re-lodging the confirmatory application on 24/10/2013 directly with the Secretartiat-General

----------------------------------

Date: Thu, 24 Oct 2013 16:36:45 +0100
From: kvitsos@.......

Subject: GestDem 3651/2013, re-lodging due to the DG RTD disregard of confirmatory application, FP6 & FP7, doubts about the compliance with the Commission's rules of procedure, C(2007) 1509

To: [email address]

CC: [email address]; [email address]; [email address]; [email address]; [email address]; [email address]; [email address]; [email address]; [email address]; [email address]; [email address]; [email address]; [email address]; [email address]; [email address]; [email address]; [email address]; [email address]; [email address]

Dear Madam/Sir,

Referring to the matter in subject, this is a re-lodging - via a different email address of the undersigned – of the confirmatory application GestDem 3561/2013 submitted on 23/10/ 2013 via asktheeu.org, http://www.asktheeu.org/en/request/fp6_f....

Since the confirmatory application was submitted as an email dispatched by the asktheeu.eu on 23/10/2013, the application is within the 15-day limit of Regulation No 1049/2001.

DG RTD has compelled the applicant to re-lodge the confirmatory application, since DG RTD wholly arbitrarily, and contrary to the very wording of the confirmatory application and the express request to pass the email of 23/10/2013 to the Transparency Unit, chose to regard the confirmatory application of 23/10/2013 as a request for information and NOT as a confirmatory application under Regulation No 1049/2001.

For the benefit of those to whom this confirmatory application is communicated, the following are noted.

1. The application concerns the exercise of the EU citizens’ right for access to documents held by Institutions, as enshrined in article 15 TFEU, article 42 of the Charter of the Fundamental Rights of the EU, and as enacted in Regulation (EC) No 1049/2001.

2. The documents at issue concern the release of DG RTD documents about the adoption of some Commission Decisions by the written procedure in 2003 and 2007 for the matters of DG RTD, in particular procedural documents about the suspension and resumption of the procedure of dully adopting a Commission Decision by the written procedure.

3. The release of the requested documents will allow establishing whether the procedure of adopting the Commission Decisions as regards (a) the FP6 model contract in 2003 and (b) the FP7 model grant agreement in 2007 was suspended and subsequently re-launched. Those two models governed the contractual relationship of the Commission with the FP6 contractors and the FP7 beneficiaries, that is to say they are at the core of managing the entire FP6 and FP7. Therefore, the matter is extremely important because some 50% of all directly managed Union expenditure is about FP7.

4. The Secretariat-General has so far stubbornly refused to release proper copies of day notes (internal documents essential for legal certainty of the Commission Decisions adopted by the written procedure) pursuant to Regulation No 1049/2001, http://www.asktheeu.org/en/request/adopt..., Secretariat-General reply to the confirmatory application GestDem 3660/2013, document Ares(2013) 3330038 - 24/10/2013, http://www.asktheeu.org/en/request/668/r....

5. One of the consequences of failing to release the requested documents in GestDem 3660/2013 (another application) and 3651/2013 (this application) is that the applicant and the public cannot establish whether Commission Decision C(2007) 1509, which concerns the FP7 model grant agreement, was properly adopted by the written procedure of the Commission’s rules of procedure, in the sense whether the prescribed procedure was duly followed, and whether the procedure was suspended.

6. The FP7 model grant agreement has a very big problem with regards the fundamental right of personal data protection, since article 13 of Annex II - adopted by the Commission Decision C(2007) 1509 – is primarily about personal data of legal persons, which is absurd.

The above consideration leads to the following conclusions:

1. The Commission services have refused to release proper copies of day notes of 2003 and 2007, and instead released documents that are not “copies” of day notes. In any kind of an administrative procedure, the released day notes would be worthless.

2. Citizens have doubts about the substance of some of the provisions adopted by Commission Decision C(2007) 1509.

3. DG RTD unlawfully and arbitrarily has treated a confirmatory application – which might be linked with Decision C(2007) 1509 – pursuant to Regulation No 1049/2001 as a request for information, which is a totally different administrative procedure than the second stage of Regulation No 1049/2001.

In the applicant’s view, such a conduct by the Commission’s administrative departments raises a host of questions. One consequence is that DG RTD appears to be in a “tight spot” with regards the present application GestDem 3651/2013, apparently attempting to “escape” by creating a pretext.

The applicant hereby kindly requests that the Secretariat-General treat the email of 23/10/2013, http://www.asktheeu.org/en/request/fp6_f..., as the confirmatory application GestDem 3651/2013. It is given as Annex 1 herein.

This confirmatory application will be communicated to DG RTD via asktheeu.org as part of my protest about the DG RTD arbitrary decision of 24/10/2013 to disregard my confirmatory application of 23/10/2013.

It is kindly also requested that the Secretariat-General dispatch correspondence regarding GestDem 3651/2013 via the asktheeu.org email address of the undersigned, and not via the email address of this email.

Yours sincerely,

Mr. Kostas VITSOS
............
............
............

Notice to:

1. Ms. Amalia SARTORI, European Parliament, Committee on Industry, Research and Energy, Chair
2. Ms. Patrizia TOIA, EP, Committee on Industry, Research and Energy, Vice-Chair
3. Mr. Jens ROHDE, European Parliament, Committee on Industry, Research and Energy, Vice-Chair
4. Dr. Dimitrios DROUTSAS, European Parliament, Committee on Industry, Research and Energy, Vice-Chair
5. Mr. Evžen TOŠENOVSKÝ, European Parliament, Committee on Industry, Research and Energy, Vice-Chair
6. Prof. Ioannis A. TSOUKALAS, European Parliament, Committee on Industry, Research and Energy
7. Ms. Niki TZAVELA, European Parliament, Committee on Industry, Research and Energy
8. Mr. Nick GRIFFIN, European Parliament, Committee on Industry, Research and Energy
9. Mr. Roger HELMER, European Parliament, Committee on Industry, Research and Energy
10. Mr. John Stuart AGNEW, MEP, U.K. Independence Party
11. Mr. Gerard BATTEN, MEP, U.K. Independence Party
12. Mr. Godfrey BLOOM, MEP, U.K. Independence Party
13. Mr. John BUFTON, MEP, U.K. Independence Party
14. Mr. Derek Roland CLARK, MEP, U.K. Independence Party
15. Mr. Nigel FARAGE, MEP, U.K. Independence Party
16. Mr. Paul NUTTALL, MEP, U.K. Independence Party
17. European Ombudsman
18. Mr. Jan Mengelers, President, European Association of Research and Technology Organisations
19. Statewatch

ANNEX 1: CONFIRMATORY APPLICATION SUBMITTED ON 23/10/2013 VIA ASKTHEEU.ORG
http://www.asktheeu.org/en/request/fp6_f...

From: Kostas VITSOS
October 23, 2013
Dear Research and Innovation (RTD),

Please pass this message, which is a confirmatory application, to the Transparency Unit of the Secretariat-General.

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

Dear Secretariat-General,

This is a confirmatory application pursuant to Regulation No 1049/2001. It is respectfully requested that the Secretariat-General review the DG RTD initial reply.

In handling the confirmatory application the Secretariat-General might search its own document management systems for written procedures to adopt an autonomous Commission Decision, for which procedures DG RTD had tabled a proposal for a Decision in 2003 and
in 2007 and the written procedure was suspended.

It is kindly requested that the Secretariat-General take into consideration my request for clarification addressed to DG RTD on 9 October 2013, and which DG RTD has not responded to, http://www.asktheeu.org/en/request/fp6_f....
The lack of response indicates that the confirmatory application is justified.

Yours faithfully,

Kostas VITSOS

***************** END OF ANNEX *************

Yours faithfully,

Kostas VITSOS

Dear Research and Innovation (RTD),

This is for the record only. It provides a copy of an email dispatched earlier today, in which the DG RTD R.5 Unit was in cc. It sets out the justification for the applicant's bypassing of the 'normal' asktheeu.org channel for lodging a confirmatory applications.

---- Email addressed to the Secretariat-General ----

From: Kostas Vitsos <kvitsos@........r>
Date: 28 October 2013 10:52
Subject: GestDem 3651/2013, confirmatory application, FP6 & FP7, doubts about the compliance with the Commission's rules of procedure, C(2007) 1509
To: "[email address]" <[email address]>
Cc: "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>, "[email address]" <[email address]>

Dear Madam/Sir,

Thank you for promptly registering my confirmatory application in subject (given at the end of the message).

This message sets out the justification of bypassing the normal via asktheeu.eu procedure of submitting a confirmatory application, that is to say dispatch the confirmatory application via my private email address and provide a copy of this application in asktheeu.org.

I must admit that the bypassing was triggered, first, by the whole handling by DG RTD of GestDem 2013/3651 and, second, by what has recently emerged in asktheeu.org about how DG RTD handles application pursuant to Regulation No 1049/2001. This is expanded below.

I. PRELIMINARY CONSIDERATIONS

One of the transparency objectives of Regulation No 1049/2001 is the release of documents enabling the scrutiny of the lawfulness of the acts of Institutions. This is precisely why there is an exception to the exceptions of article 4(2) and 4(3), that is to say the overriding public interest.

It is recalled that DG RTD has been caught in the business of:

a) Filing the grossly inaccurate and misleading prior notifications of article 25 of Regulation No 45/2001 DPO-978 & DPO-2382 concerning FP6 & FP7 call for proposals and negotiations. The fundamental aspect of the problem stems from the omission to set out in the prior notifications the personal data processing of third parties to the proposals and contracts/agreements, which over the last ten years has amounted to the unlawful personal data processing of hundreds of thousands of data subjects.

b) Filing the utterly deplorable prior notification DPO-3338.1 that contains two false statements, a non-existent legal basis and numerous other deceptive ‘declarations’ (e.g. transferring personal data to IDOC). According to article one, second indent, of Commission Decision 597/2008 of 22/9/2008, the DPO-3338.1 data controller (a DG RTD Director) is personally liable for the false statements. See GestDem 2013/3351 http://www.asktheeu.org/en/request/perso....

c) In GestDem 2013/3349 (same applicant as the undersigned), DG RTD refused to fully disclose one volume of the FP6 Audit Manual. A third party provided the undersigned with a copy of the partially disclosed manual. It turns out that the withheld parts of the FP6 manual are not even remotely related to, first, the “public interest as regards the Union’s financial policy”, and, second the “purposes of audits” within the meaning of article 4(2) third indent of Regulation No 1049/2001; DG RTD relied on those two provision to justify the partial disclosure. The applicant provided a the parts of the withheld manual as an annex to the confirmatory application. Contrary to the DG RTD claims, the withheld parts disclose the concealed policy of the Research DGs to unlawfully process personal data of third parties to the FP6 external financial audits. What makes the DG RTD refusal of full disclosure gravely unlawful is that DG RTD had provided the FP6 Audit Manual to the DG RTD contractors which had conducted the FP6 external financial audits. Private contract law contractors (i.e. audit firms) do not perform audits within the meaning of article 4(2) third intend of Regulation 1049/2001 by virtue of article 57(2) of Regulation No 1605/2002 as amended (contractors carry out ancillary tasks only). A DG RTD private contract law contractor does not perform tasks of the “public interest as regards the Union’s financial interest”, when an audit firm at the behest of DG RTD audits a FP6 contractor and in doing so infringes the national personal data protection laws. This is yet another example where DG RTD infringes Regulation No 1049/2001 in order just to avoid a disclosure of its gravely unlawful policies and practices in external financial audits.

Furthermore, the applicant understands that in another occasion of an application pursuant to Regulation No 1049/2001 about the documents setting out the FP6/FP7 external financial audits methods and techniques, the DG RTD R.5 Unit grossly misled that other applicant in its initial response by concealing the existence of the FP6 Audit Manuals and the FP7 Audit Handbook.

The above facts suggest that DG RTD has some kind of a much distorted view of what legality is, and in order to ‘keep to itself’ its own private views of legality it will not hesitate to infringe Regulation No 1049/2001.

II. DG RTD HANDING OF THE APPLICATION GESTDEM 2013/3651

The following paragraphs discuss the highly questionable practices of DG RTD in this application and in a second one (it illustrates the DG RTD tenor).

In GestDem 2013/3912, http://www.asktheeu.org/en/request/fp6_f..., DG RTD has resorted to flagrant infringements of Regulation No 1049/2001. DG RTD has made the release of documents concerning five requests conditional on the organisation of a meeting, or audio/video conference, with the applicant, in spite of that applicant’s strong protests about such unlawful demands, http://www.asktheeu.org/en/request/fp6_f.... The five requests therein concern documents providing to DG RTD senior officials the authorisation for publishing documents requesting from FP6/FP7 participants to undertake unlawful personal data processing in calls for proposals, negotiations guides, guides on FP7 certificates. When it came to the personal liabilities of its own senior officials and documents establishing the personal liabilities, in order to circumvent its obligations in the first stage of the administrative procedure of Regulation No 1049/2001, DG RTD has introduced the extra-procedural meeting/conference demands.

In the present application, it took DG RTD nearly three months to provide the initial response, which in the applicant’s view was not unequivocal about DG RTD not holding the requested documents. The DG RTD official response to the first stage of the administrative procedure of Regulation No 1049/2001 does not bear an Ares reference number, which the applicant understands is against the Commission’s internal rules for drawing up and dispatching to applicants the initial response. When the applicant requested the Ares reference number, which DG RTD ought to have provided in the first place, DG RTD chose to treat it the as a request for information, separate from the administrative procedure of Regulation no 1049/2001. When the applicant requested that DG RTD unequivocally state that no documents are held, instead of what the applicant saw as an ambivalent statement, DG RTD construed it as a request for information and seemingly launched another administrative procedure in a distinct legal basis.

III. DOUBTS ABOUT THE LEGAL STATUS OF THE FIRST COMMISSION DECISIONS ADOPTING THE FP6 MODEL CONTRACT & FP7 MODEL GRANT AGREEMENT - UNLAWFUL REFUSAL TO RELEASE DAY NOTES

Another extremely worrying development – which is also closely linked with the requested documents in the present application - is that the Secretariat-General has yet again unlawfully refused to release proper copies of day notes of 2003 and 2007. One particular example is GestDem 2013/3759, where the response of Secretariat-General to the confirmatory application has included materially incorrect facts that are in plain public view. That applicant has already complained to the Secretariat-General, http://www.asktheeu.org/en/request/copie... and has questioned the substance of the final response. In that application, the Secretariat-General has only released preparatory documents that were, seemingly, used to drawn up the requested day notes.

The applicant will put it bluntly as follows:

The wholly unlawful refusal to release proper copies of day notes of 2003 and 2007 creates fully justified doubts about whether the two Commission Decisions about the very first adoption of the FP6 model contract and the FP7 model grant agreement C(2007) 1509 legally exist, in the sense whether the Commission’s rules of procedure about their adoption by the written procedure were followed. Annex II of the FP7 model grant agreement has two provisions about personal data processing which are extremely puzzling, with one gravely unlawful. This is discussed below.

The first is article 13 that concerns personal data of legal persons (99.9% of FP7 beneficiaries); even if article 13 concerns only the 0.1% of natural persons that might be FP7 beneficiaries, it grants rights already enacted in Regulation No 45/2001; there is no reason to include the contractual article 13 provisions to ‘address’ the needs of the 0.1% of FP7 beneficiaries, when Regulation No 45/2001 has enacted the very same right as a matter of Community law.

The second unlawful provision is the article 22 fourth sub-paragraph that contractually obliges FP7 beneficiaries to provide information of salaries (i.e. personal data) of third parties to the FP7 grant agreement. That particular provision compels a FP7 beneficiary to infringe the national personal data protection legislation. Moreover, the DG RTD processing of ‘information on salaries’ is a grave infringement of Regulation No 45/2001. It is recalled that DG RTD DPO-3398.1 applies in that particular context; the two DPO-3398.1 false statements tell a lot about the lawfulness of those two provisions of Annex II of the FP7 model contract.

If Commission Decision C(2007) 1509 was indeed adopted, then several administrative departments will have to answer about article 13 and the ‘information on salaries’ provisions. It cannot be excluded that the administrative departments ‘convinced’ the Member of the Commission who had tabled the proposal for Decision C(2007) 1509 to suspend the written procedure. A more ‘cunning’ strategy would have been to suspend the written procedure and conceal the suspension. This would ‘free’ the senior officials from the disciplinary liabilities of the aforesaid two provisions of Annex II.

After all, who – and for what reasons - would have thought to check that the written procedure adopting the FP6 model contract and the FP7 grant agreement would have been followed. The same applies to the false statements of DPO-3398.1; who – and for what reasons - would have thought to check DPO-3398.1, and then check the purported EDPS ‘consulation’. Yet all this is now in the public domain. DG RTD has been caught red-handed in something for which the applicant is short of words to properly describe in terms of the conduct of an administrative department of the guardian of the Treaties managing 22 billion of taxpayers’ money in FP7 alone.

Unless and until the Secretariat-General release a proper copy of the day note concerning C(2007) 1509, in view of the grave illegalities of DG RTD the public will rightly have the aforementioned doubts about the two Commission Decisions.

IV. CONCLUSIONS

In the framework of applications pursuant to Regulation No 1049/2001 seeking the disclosure of documents in order to scrutinise the legality of DG RTD policies, acts and measures in FP6, FP7 and Horizon 2020, DG RTD has to appreciate that its own conduct - which was shortly discussed above - has created an atmosphere of mistrust between DG RTD and applicants.

In my view, applicants rightly perceive that sometimes the DG RTD initial response and the overall tenor are essentially evasive tactics, ‘throwing a spanner’ in the workings of the administrative procedure of Regulation No 1049/2001, and ultimately amounting to attempts to create pretexts to unlawfully withhold documents or conceal their existence.

The applicant respectfully submits to the Commission services that his “quick” reaction of 25/10/2013 to the DG RTD response of 25/10/2013, http://www.asktheeu.org/en/request/fp6_f... has to be seen in the overall context of the above considerations.

V. REQUEST TO REPLY VIA ASKTHEEU.ORG

Finally, it is stated once more that I would be obliged if the Transparency Unit would dispatch correspondence regarding the latter application be dispatched to the asktheeu.org email account.

For the sake of full public visibility, this message will be also sent via asktheeu.org as a follow up.

Yours sincerely,

Mr. Kostas VITSOS
...........
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Notice to:

1. Ms. Amalia SARTORI, European Parliament, Committee on Industry, Research and Energy, Chair
2. Ms. Patrizia TOIA, EP, Committee on Industry, Research and Energy, Vice-Chair
3. Mr. Jens ROHDE, European Parliament, Committee on Industry, Research and Energy, Vice-Chair
4. Dr. Dimitrios DROUTSAS, European Parliament, Committee on Industry, Research and Energy, Vice-Chair
5. Mr. Evžen TOŠENOVSKÝ, European Parliament, Committee on Industry, Research and Energy, Vice-Chair
6. Prof. Ioannis A. TSOUKALAS, European Parliament, Committee on Industry, Research and Energy
7. Ms. Niki TZAVELA, European Parliament, Committee on Industry, Research and Energy
8. Mr. Nick GRIFFIN, European Parliament, Committee on Industry, Research and Energy
9. Mr. Roger HELMER, European Parliament, Committee on Industry, Research and Energy
10. Mr. John Stuart AGNEW, MEP, U.K. Independence Party
11. Mr. Gerard BATTEN, MEP, U.K. Independence Party
12. Mr. Godfrey BLOOM, MEP, U.K. Independence Party
13. Mr. John BUFTON, MEP, U.K. Independence Party
14. Mr. Derek Roland CLARK, MEP, U.K. Independence Party
15. Mr. Nigel FARAGE, MEP, U.K. Independence Party
16. Mr. Paul NUTTALL, MEP, U.K. Independence Party
17. European Ombudsman
18. r. Jan Mengelers, President, European Association of Research and Technology Organisations
19. Statewatch
20. DG RTD Unit R.5

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[email address]
Προς ΕγώRTD[email address]
Οκτ 27 τις 6:15 π.μ.
Dear Mr Vitsos,

Thank you for your e-mails dated 23 and 24/10/2013, registered on 25/10/2013.
As far as I know, DG RTD hasn't disregarded your confirmatory application, that was duly transmitted to the Secretary General of the European Commission the 24/10/2013 (see annex).
I hereby acknowledge receipt of your confirmatory application for access to documents (ref.: Ares(2013)3335707 – gestdem 2013-3651).

In accordance with Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, you will receive a response to your request within 15 working days (18/11/2013).

Yours sincerely,

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

Yours faithfully,

Kostas VITSOS

Direction générale de la recherche et de l’innovation

2 Attachments

Dear Mr. Vitsos,
 
Kindly find herewith a letter concerning your confirmatory application for
access to documents (GESTDEM 2013/3651).
Yours sincerely,
 
BLURIOT-PUEBLA Madeleine
Cellule 'Accès aux documents'
 
European Commission
SG/B/5 - Transparence

BERL 05/330
B-1049 Brussels/Belgium
+32 2 296 09 97
[1][email address]
 

References

Visible links
1. mailto:[email address]

Direction générale de la recherche et de l’innovation

2 Attachments

Dear Mr Vitsos,

Kindly find the answer to your confirmatory application concerning your
request for access to documents pursuant to Regulation (EC) N° 1049/2001
regarding public access to European Parliament, Council and Commission
documents (Gestdem 2013/3651).
Yours sincerely,
Carlos Remis
SG.B.5.
Transparence.
Berl. 05/329.
 
 
 
 
 
 
 

 
 
 

Dear Research and Innovation (RTD),

Please forward to the Secretariat-General my thanks for the response to the confirmatory application.

Yours faithfully,

Kostas VITSOS