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:

The requested documents are directly related with the Commission’s proposal for a Regulation of the European Parliament and the Council laying down the rules for the participation and dissemination in 'Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020), COM(2011) 810 final, 2011/0399 (COD).

The application concerns the following documents:

1. The documents of the inter-services consultations, including the meeting minutes.

2. After the conclusion of the inter-service consultations, the resulting final draft that the lead service dispatched to the Legal Services requesting their opinion, including all annexes and appendices as well as the accompanying note.

3. The document(s) setting out the opinion of the Legal Services in response to the request of the lead service.

4. As stipulated by Commission’s Rule of Procedures, the favourable opinion of the Legal Services.

5. The preparatory documents submitted to the College for the adoption of COM(2011) 810, article 9(3)(c) of Commission Decision 2001/937.

6. Having due regard to the prior notifications DG RTD DPO-3398.1 and the DG CNET DPO-3338.1 and the proposed article 25: the documents drawn up pursuant to article 28(2) of Regulation No 45/2001 and article 8(2) of Commission Decision 2008/597/EC, including documents dispatched to the European Data Protection Supervisor (EDPS).

7. Having due regard to the DG RTD DPO-3398.1 and the DG CNET DPO-3338.1 and the proposed article 25: the documents drawn up pursuant to article 8(3) of Commission Decision 2008/597/EC.

8. Having due regard to the proposed article 25, Directive 95/46/EC and Regulation No 766/2008 and the specific role of the EDPS in Customs Information System: the documents drawn up by the Commission services examining and assessing the implications of the proposed article 25 in relation to the national legislation of the Member States transposing into national law Directive 95/46/EC (e.g. U.K. Data Protection Act 1998, as amended).

9. Having due regard to the proposed article 25, the prior notifications DG RTD DPO-3398.1 and the DG CNET DPO-3338.1: the documents drawn up by DG RTD, DG INFSO and the Legal Services duly advising the President of the Commission and their respective Members of the Commission about the sensitive nature of the Commission’s proposal with respect to article 16(1) TFEU, Directive 95/46/EC, Regulation No 45/2001, and the Schecke Judgment of the Court of Justice.

For all requested documents, it is obvious that an overriding public interest dictates their full release in view of the direct relevance of the proposed article 25 with article 16(1) TFEU, Directive 95/46/EC, Regulation No 45/2001, and the Schecke Judgment of the Court of Justice. The is all the more the case in view of the sharp contrast between the approach adopted in Regulation No 766/2008 and COM(2011) 810 regarding personal data protection.

Yours faithfully,

Zois Zervos

Dear Research and Innovation (RTD),

I refer to your email suggesting that the initial reply be provided by the end of September. In view of the large number of documents, it must unavoidably be accepted.

Having said the above, it is worth further noting that all requested documents either do exist or ought to have been drawn up. It would be extremely surprising if DG RTD were to argue that any of exceptions of article 4 of Regulation protects even a small part of any single document.

Since the legislative proposal concerns more than 50% of all centrally managed expenditure, the Research DGs should have comprehensively and meticulously examined every possible angle as regards the legislative proposal and the associated personal data processing especially in view of the Schecke Judgment of the Court of Justice. Ultimately, legislative proposals entailing personal data processing in the Member States and effectively imposing such processing to Horizon 2020 participants as Union law are at the critical juncture of two important principles, meaning that full transparency is necessary.

Yours faithfully,

Zois Zervos

Dear Research and Innovation (RTD),

This is to kindly request information about the status of the initial reply of GESTDEM 3350/2013.

Relying on article 6(3) of Regulation No 1049/2001, on the 7th of August 2013 DG RTD informed me that it was necessary to extend the date of the initial reply to the end of September. DG RTD has manifestly failed to release a single document so far, even though 70 working days have passed since the application was registered.

There is nothing unusual about requests #1 to #5 to require a ‘special’ handling, which means that DG RTD ought to have released the corresponding documents by the 30th of September.

It is understandable that requests #6 to #9 are very tricky, simply because DG RTD has admitted in the initial reply of GESTDEM 3351/2013 of 12/9/2013 – available at ….. – that DPO-3398 (a) has no legal basis in Union law (see reply to request under number 7) , (b) contains a false declaration about a purported EDPS consultation that in fact never took place, (c) contains the blatant lie (i.e. false declaration) that DG RTD has not been engaging external contractors– processors. It appears that in article 25 of the proposal COM(2011) 810 DG RTD – as the lead service - took a step further in its ‘hidden agenda’ of disregarding the fundamental right of personal data protection, and in doing so DG RTD recklessly disregarded the Schecke Judgment of the Court of Justice.

Nevertheless, DG RTD obliged by EU law to release all the requested documents, following a diligent search for documents. Subsequently, the public will be able to scrutinise the underlying logic of the said article 25 which is directly and indissociably linked with that right.

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

Yours faithfully,

Zois Zervos

Dear Research and Innovation (RTD),

Referring to the application GESTDEM 3350/2013 which concerns the Commission's proposal for Horizon 2020 - Rules of Participation - COM(2011) 810, the present email PROTESTS about the wholly unacceptable conduct of DG RTD in delaying to provide an initial reply.

DG RTD undertook to provide an initial reply on 30/9/2013, that is to say more than three months later than the registration of the application (on 24/6/2013). To an enquiry of 3/10/2013 about the status of the initial reply, DG RTD did not bother to inform the applicant about the status of the reply. Nearly four months after the lodging of the initial application, not even a single paragraph has been released.

The application does not concern 'esoteric' DG RTD documents. It is about the Commission's proposals for one of the two Regulations of the Parliament and the Council about Horizon 2020. The application is about documents concerning the very essence of Horizon 2020 that form the very basis of the Commission's proposal for legislation.

It has emerged from the DG RTD initial reply of the application GestDem 2013/3351 - http://www.asktheeu.org/en/request/perso... - that insofar the personal data processing is concerned, the DG RTD external financial audits have no basis in Union/Community law. The DG RTD need to mislead the public about its compliance with Regulation No 45/2001 in such audits 'compelled' DG RTD to include two false statements in the prior notification of article 25 of Regulation No 45/2001 DPO-3398.1. Article 1 second indent of Commission Decision 597/2008 has made the DPO-3398.1 controller (a DG RTD Director) personally liable for the false statements of DPO-3398.1 and the non-existing legal basis to process personal data in the external financial audits.

Article 25 of the Commission's proposal COM(2011) 810 is in conflict with several articles of Regulation No 45/2001 and the national personal data protection laws. From the EDPS website it emerges that the Commission kept the EDPS in the dart, which means that the Commission did not comply with article 28(2) of Regulation No 45/2001 insofar the article 25 of COM(2011) 810 is concerned. In Horizon 2020, the Commission services manifestly disregarded the landmark Schecke Judgement of the Court of Justice.

It appears that in Horizon 2020 the Research DGs, with DG RTD in the lead, became bolder in disregarding the fundamental right of personal data protection enshrined in article 16 TFEU and Regulation No 45/2001. In FP7 the Research DGs started with false statements in documents stipulated by the statute (i.e. DPO-3398.1). Apparently, emboldened by not having been caught in FP7 by late 2011, in Horizon 2020 by way of article 25 of COM(2011) 810 the Research DGs and a few other Directorates-General 'managed' to 'pass' through the College the latter article 25. If that article 25 is enacted, it is certain that it contravenes article 16 TFEU, Regulation No 45/2001 and the national personal data protection laws. A quick glance at the Schecke Judgement of Court of Justice reveals the contravention of article 16 TFEU.

The above paragraphs strongly suggest that the excessive delays of providing an initial reply is that the architects of the 'ploy' of the Research DGs about article 25 of COM(2011) 810 are in the danger of being disclosed to the public. The natural human reaction is to try to 'hide' the architects.

However, the very principles of democracy, rule of law and transparency dictate the the full release of all documents under the scope of GestDem 3350/2013 is the only option of DG RTD.

In the light of all the foregoing, the applicant reiterates his PROTEST about the excessive and unlawful DG RTD delay and request the prompt release of all the documents applied for.

Yours faithfully,

Zois Zervos

Dear Research and Innovation (RTD),

Referring to the application GESTDEM 3350/2013 and the DG RTD email of 17/10/2013 informing the applicant about the status of the initial reply, this is to set out in even stronger terms the applicant’s PROTEST about the handling of the initial application and the failure of DG RTD to set a time-limit regarding the initial reply.

The protest hereunder follows the procession of the points DG RTD raised in its email of 17/10/2013.

1. ADMINISTRATIVE PROCEDURE OF REGULATION NO 1049/2001 AS A LEGAL MEDIUM TO DISCUSS DG RTD ACTS

DG RTD has entirely misconstrued the argumentation contained in the correspondence with DG RTD regarding the legality of its acts, and the relationship of the argumentation with the administrative procedure of Regulation No 1049/2001.

The applicant has not at all entered into a dialog with the Commission services about the legality of the acts of the Commission services. The applicant has referred to the manifest illegalities of DG RTD as regards the fundamental right of personal data processing and the DG RTD external financial audits, solely to further illustrate the overriding public interest provision of Regulation No 1049/2001.

Surely, the manifestly wrongful acts of a Commission’s administrative department exposed in full public view constitute valid grounds for invoking the overriding public interest. No matter how deeply DG RTD feels humiliated about it (even seriously offended), DG RTD ought to have considered the ramifications of its wrongful acts when it adopted the concealed policies that brought about the wrongful acts.

Finally, it should not escape the Commission services’ attention that citizens and taxpayers might feel even more offended in realising that administrative departments of the guardian of the Treaties have resorted to seriously illegal acts that have culminated into the posting of documents with false declarations in the Europa website (e.g. DG RTD prior notification DPO-3398.1). Such an unlawful conduct suggests, among others, a grossly ‘substandard’ and inadequate management of the funds entrusted to DG RTD.

2. EXCUSES AND JUSTIFICATIONS FOR THE EXCESSIVE AND UNLAWFUL DELAYS

The General Court has repeatedly held that the administrative load required to handle an application pursuant to Regulation No 1049/2001 does not absolve an Institution from complying with the obligations of that Regulation. Consequently, DG RTD ought to have provided the initial reply by the time limit DG RTD itself set, i.e. 30/9/2013.

Contrary to what DG RTD has claimed, the delay cannot be considered as “unexpected” as on 7/8/2013 set as a deadline the 30th of September. On that day DG RTD had a full view of the number of documents falling under the scope of the application and the time it would have required to assess them.

The requested documents are all indissociably linked with a legislative proposal for a Regulation of the Parliament and the Council, where according to the EU Courts case-law there is a presumption that the documents are subject to a full released (e.g. Turco Judgment of the Court of Justice). In my opinion, DG RTD and the Commission services have to study and assess the Opinion of the Advocate-General in the Case C-280/11 P, Council v Access Info Europe, about the utmost importance of full transparency as regards documents indissociably linked with a legislative proposal.

The EU Courts have consistently held that for documents directly concerned with EU legislative acts the “widest possible” access is what is the legal requirement according to Regulation No 1049/2001. Therefore, in so far DG RTD intended to mean that the delays are partially attributable to its efforts to provide “widest possible” access, DG RTD has stated the obvious, which further implies that “widest possible” access does not justify the excessive delays.

Turning to the need to involve several administrative departments, which according to the DG RTD contributed to the excessive delays, it must be observed that the Commission services have had the opportunity to assign the requests to the administrative departments that were primarily responsible to handle them. More specifically, requests #3 and #4 concern documents drawn up by the Legal Services, so they could have been assigned to the Legal Services. Requests #6, #7 & #8 appear to fall primarily under the responsibility of the Secretariat-General, with a secondary role to DG RTD and the Legal Services. By definition request #9 is to be handled by Secretariat-General, DG RTD and DG CNECT, with very few documents conceivably falling under its scope. It is worth recalling that under article 10 of Commission Decision 937/2001 (OJ 2001, L 345 page 94) the aforementioned requests were to be assigned – to a substantial extent - as indicated in the above scheme.

In conclusion, the DG RTD reference to “has taken some time as several services need to be consulted” cannot be accepted as a justification to the excessive delays, at least in so far the spirit of the ‘justification’ runs contrary to the Decision 937/2001.

Regarding the reference to “we have received during the past months an important number of voluminous applications which also needed to be handled by our limited resources”, it is worth pointing out that it appears that the very cause of a high number of voluminous requests is the public’s profound doubts about the legality of the DG RTD acts and measures. It appears that the public has intensified the scrutiny of the DG RTD policies and acts precisely because it has been established in full public view that in the prior notification DPO-3398.1 DG RTD, as the data controller within the meaning of Regulation No 45/2001, has inserted two false declarations.

Inasmuch the “voluminous applications” are concerned, the DG RTD implied “justification” of the delays is analogous to a complaint of a citizen charged with numerous offences that he/she cannot afford hiring the best lawyers to defend him/her due to the high numbers of the charges, and therefore the prosecuting authorities will have to delay the persecution until the citizen manages to find the funds to hire the best lawyers.

3. CONCLUDIND REMARKS

DG RTD has not set a time-limit for releasing the documents, not even a single one. Therefore, it may take several weeks, even months to provide an initial reply.

Faced with such serious infringements of his rights enshrined in Regulation No 1049/2001, in case DG RTD fails to disclose the documents without any further delays the applicant intends to bring the matter to the attention to the highest echelons of the Institutions and the National Authorities.

Yours faithfully,

Zois Zervos

Dear Research and Innovation (RTD),

This is a kind reminder that according to the asktheeu.org records DG RTD has yet to release a single document for an application registered on 24 June, that is to say 4.5 months ago.

I most definitely do not wish to lodge a confirmatory application without having received the DG RTD initial response, because that would deprive me the opportunity to argue for a full release of any partially or wholly withheld document(s).

Faced with the above situation, unless DG RTD provide me with the long overdue initial response very shortly, I will be compelled to draw the attention of third parties as indicated in my email of 17 October.

Yours faithfully,

Zois Zervos

Dear Research and Innovation (RTD),

Eleven working days following your email of 18 November, and the applicant is still waiting to receive the DG RTD initial reply.

Judging by the snail progress of drafting the initial reply, the DG RTD management may require several months to adopt a decision. More than five months after the submission of the application, not a single paragraph has been released.

All this is simply unacceptable for the Commission's proposal for a Regulation of the Parliament and the Council regarding Horizon 2020.

I would therefore be obliged if the R.5 Unit would forward my concerns and complaints to the DG RTD management, pointing out that the public might loose confidence in how on earth DG RTD will be able to manage Horizon 2020 if it takes more than five months to provide an initial response to a simple application under Regulation 1049/2001.

Yours faithfully,

Zois Zervos

Dear Research and Innovation (RTD),

This is a confirmatory application for GestDem No 2013/3350, and it is to be forwarded to the Secretariat-General.

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Dear Transparency Unit,

Pursuant to article 7(2) of Regulation No 1049/2001 a confirmatory application is respectfully submitted for all requests of GestDem No 2013/3350. DG RTD provided the initial reply on 6/12/2013, http://www.asktheeu.org/en/request/585/r....

This application respectfully argues that DG RTD erred in law in not fully releasing the documents concerning requests #1 - #5 and that DG RTD did not carry out a diligent search for documents.

I. EXCESSIVE DURATION OF THE FIRST STAGE OF THE ADMINISTRATIVE PROCEDURE OF REGULATION 1049/2001

For the purposes of appreciating the true ‘character’ of the DG RDT initial response, it is appropriate to briefly examine the sequence of events culminating in the DG RTD response.

1. The application was lodged on 21 June and on 24 June the DG RDT acknowledged its registration under reference GestDem No 2013/3350.

2. On 9 July DG RTD extended the time-limit by 15 days, on account of “as your application concerns a very large number of documents, which in order to be retrieved require large files to be examined by different Services”.

3. On 7 August DG RTD informed me that it was necessary to extend the time-limit to the end of September, relying on article 6(3) "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", and kindly requested my agreement.

4. On 8 August I accepted the DG RTD extension of the time-limit to the end of September, also noting that it would be surprising if DG RTD would refuse the full release of the documents at issue.

5. On 3 October I made enquiries with DG RTD about the status of the initial response, kindly reminding DG RTD that it was obliged to carry out a diligent search for documents.

6. On 15 October I protested to DG RTD about its failure to provide me with an initial response by the end of September. I went on to point out that article 25 of the Commission’s proposal COM(2011) 810 had a host of huge issues as regards compliance with article 16 TFEU, Directive 95/46/EC, Regulation 45/2001 and the Schecke Judgement of the Court of Justice.

7. On 17 October DG RTD informed me that the delay was to be attributed to “However, due to the nature of the requested documents, their analysis with a view to grant you the widest access as possible, has taken some time as several services need to be consulted”.

8. On the same day and reflecting on the DG RTD explanations for the delay, I protested in even stronger terms about the delays, and argued that the underlying substance was closely and extensively linked with the concealed policy of the Research DGs to infringe the Union and national personal data protection legislation in FP6, FP7 and Horizon 2020.

9. On 9 November I made again enquiries with DG RTD about the status of the initial response.

10. On 19 November DG RTD informed me that the internal handling of the application was complete, pending only the approval of the initial response by the DG RTD hierarchy. DG RTD explained that the cause of the delay was: “the unexpected overrun of the deadline set for handling your application which is the unfortunate consequence of the fact that several services needed to be consulted due to the nature of the documents requested”.

11. On 4 December I requested that the DG RTD R.5 Unit inform the DG RTD management about my complaints as regards the slow progress of the approval process.

12. On 6 December DG RTD provided me with the initial response. DG RTD had identified just two documents as falling under the scope of the application, totally refusing access.

It took five and half months to receive the initial response for internal documents directly concerned with the Commission’s proposal for a legislative act of the Parliament and the Council about the Horizon 2020 Rules of Participation. At the time DG RTD gave its response, the text of legislative act had largely been agreed upon by the Parliament and the Council; in fact, DG RTD had a press release about it in the end of November.

Whereas DG RTD was justifying the excessive delays on account of “widest access as possible” and the need to assess a large number of documents, in the end DG RTD identified just two documents. This runs contrary to the DG RTD justifications of the excessive delays.

It is obvious that DG RTD had adopted evasive tactics to delay the initial response, amounting to misleading the applicant about the cause of the delays. With hindsight, it seems that DG RTD did not wish to release the documents at issue prior to the conclusion of the legislative process, even though delaying for so long the initial response was a flagrant infringement of Regulation 1049/2001.

II. DISMAL FAILURE TO IDENTIFY DOCUMENTS

In view of just two documents being identified, it is difficult to find words to describe what the DG RTD initial response amounts to. On the one hand, DG RTD must have considered the applicant as a child who can believe any fairy-tale. On the other, that the initial response is, and will be, in full public view signals that DG RTD is in an extremely difficult position with the underlying substance of several articles of COM(2011) 810, and in particular article 25.
The following paragraphs establish that DG RTD holds copies of numerous documents, which it dismally failed to identify and fully disclose.

The proposal COM(2011) 810 was adopted by the College by the oral procedure. The applicable Commission’s Rules of the Procedure at the material time were laid down in the Decision C(2010) 1200. Article 8(1) of the Rules reads “The Commission shall take decisions on the basis of proposals from one or more of its Members”. The proposal for COM(2011) 810 falls under the scope of request #5. Yet, DG RTD failed to spot that it ought to release the proposal tabled to the College.

Inter-services Consultations (‘ISC’) were governed by the Note dated 20/10/2010 of the Secretariat-General addressed to Directors-General and Head of Service, SEC(2010) 719, with the revised version of the procedural guide to ISC annexed thereto (a 17 page document). Yet, according to the DG RTD initial answer, the sole identified document is ‘a draft proposal for COM(2011) 810’. Of course, it cannot be accepted that this is sole document falling under request #1. There must be several dozens of document falling under the scope of request #1.

With regards to requests #3 and #4 (legal opinions), DG RTD identified ‘a cover note on interservice consultation RTD/1074831’, which cannot serve the purposes of the documents defined in both those two requests. It is far more likely that the ‘cover note’ concerns request #3 than request #4.

In so far the total number of identified documents in concerned, the initial reply of DG RTD must be contrasted with the application GestDem No 2012/5765, concerning SEC(2012) 679 ‘New guidelines to remind staff of whistle-blowing obligations’, www.asktheeu.org/en/request/whistleblowi.... In that application, DG Human Resources and Security released several dozens of documents, after it had apparently carried out a diligent search for documents.

The stark contrast between the two Directorates-General strongly suggests that the Research DGs have something to hide as regards COM(2011) 810, and this is the reason for the particular handing of this application so far.

III. WHOLLY ERRONEOUS RELIANCE ON ARTICLE 4(3) TO TOTALLY REFUSE ACCESS

1. STATUS OF ADOPTING THE LEGISLATIVE ACT

Whereas on 6/12/2013 it appears that COM(2011) 810 was not formally enacted, nevertheless the research of the undersigned indicates that the Parliament and the Council have reached an agreement about the text of the Regulations for Horizon 2020.

DG RTD has not clarified whether it relied on the first or the second sub-paragraph of article 4(3). In so far the proposal COM(2011) 810 is concerned, the position of the Commission is final. According to the Commission’s press release IP/13/1133 of 21/11/2013: “The European Commission today welcomed the European Parliament's adoption of Horizon 2020, the next EU research and innovation programme”.

In view of the status of COM(2011) 810 and the agreement between the Parliament and the Council as of early December 2013, it is plainly impossible to understand how the release of the internal documents at issue falls, even remotely, under the exception of article 4(3).

2. CASE-LAW

According to the Sweden & Turco v Council Judgement of the Court of Justice (Cases C‑39/05 P and C‑52/05 P) and as is stated in recital 2 of Regulation 1049/2001, the public right of access to documents of the Institutions is related to the democratic nature of those institutions. That Judgement established the principle that Institutions are obliged to fully disclose documents relating to EU legislative acts, including legal opinions that are protected by article 4(2) second indent of that Regulation.

In the Judgement in the Case C‑280/11 P, Council v Access Info Europe, the Court of Justice reaffirmed the principle that full access is to be granted to documents relating to EU legislative acts. In that particular application, the Council had relied on article 4(3) to grant partial access to a document (it just refused to grant access to the parts of the documents revealing the identity of Member States) “on the ground that disclosure of those identities would have seriously undermined its decision-making process and there was no overriding public interest in such disclosure” . In §60 the Court of Justice reaffirmed the finding of the General Court that “…the preliminary nature of the discussions does not, in itself, justify application of the exception provided for in the first subparagraph of Article 4(3)….”.

In the Case T-529/09 (under appeal), Sophie in ’t Veld v Council, the General Court held in §90-92 that the parts of a legal opinion concerned with the fundamental right of personal data protection are subject to an overriding public interest. Consequently, an Institution must weigh the opposing interests of full transparency of any document with internal positions and opinions about that fundamental right against other the other interests of articles 4(2) and 4(3). This argument is applicable to all parts of the documents at issue concerning article 25 of COM(2011) 810.

Consequently, the case-law of the Courts of the Union dictates that the Commission services are, in principle, obliged to fully release all documents at issue.

3. GENERIC ARGUMENTS

In the last paragraph of the second page DG RTD stated:

“Disclosure would run a tangible and reasonably foreseeable risk of undermining the decision-making process of the institutions. Services must be free to explore all possible options of a decision free from external pressure. ”

The claim about “run a tangible and reasonably foreseeable risk …” is not only a mere unsubstantiated one, but adopting its logic would render the entire Regulation 1049/2001 meaningless. Turning to the claim “. Services … free from external pressure”, its logic is that third parties would be able to exert external pressure to an Institution at will, provided that internal documents about legislative acts were disclosed to the public. Such a claim not only attaches powers of ‘magic’ to third parties, but it presupposes that Institutions are at the whim of external pressure, which flies in the face of the required character of the guardian of the Treaties.

The Courts of the Union have consistently dismissed such kind of generic arguments in support of refusing total access under Regulation 1049/2001. Accordingly, that aspect of the DG RTD initial reply cannot be accepted.

Turning to the position “Ahead of its implementation, the public perception of the Horizon 2020 package would be adversely affected and the image of the latter tarnished”, the applicant cannot understand what DG RTD has meant to say. In any event, how the image of Horizon 2020 would be tarnished by the release of the documents at issue is a total mystery. Should the Secretariat-General maintain such kind of reasoning in the response to the confirmatory application, the undersigned expects that it will be clearly set out in sufficient detail in order to understand it and ascertain its legality.

4. RELIANCE ON CASE T-144/05

The undersigned is totally puzzled about how the Judgement of the Court of First Instance (‘CFI’) in that Case can lend any support to the DG RTD arguments. In that particular application under Regulation 1049/2001, the Commission granted access to several documents in the first place, subsequently the Commission further released additional documents during the course of the legal proceedings, and finally the Court annulled the Commission Decision for several of the withheld documents. It is noted that according to §80, an Institution must establish with certainty the reality of the external pressure would compromise the decision-making process, and “evidence must be adduced to show that there was a reasonably foreseeable risk that the [classification decision] to be taken would be substantially affected owing to that external pressure”. Consequently, seen from a holistic perspective, that Judgement is actually for the release of the documents of this application.

From the passage “certain, albeit narrowly refined circumstances, may constitute a legitimate ground for restricting access”, it seems that DG RTD argues that there is something very specific to the documents at issue, and that according to the CFI under some circumstances the restriction of access is lawful. Since DG RTD has not advanced any specific arguments, but has instead has put forward very generic and abstract arguments that may applied to any kind of internal documents, it must be concluded that the case-law of Case T-144/05 does not lend any support to the DG RTD total refusal of access.

IV. NO JUSTIFICATION OF REFUSING PARTIAL ACCESS

DG RTD has stated in the second paragraph of page 3 that it had considered granting partial access under article 4(6) of Regulation 1049/2001 and concluded “Unfortunately, the present application is not eligible for partial access”. It is self-evident that this is not a statement of reasons, and consequently the decision to refuse partial access is arbitrary and unlawful.

V. SIGNIFICANCE OF THE RESPOSNE TO REQUESTS #6 - #9

The next paragraphs outline the consequences of the initial response that no documents are held.

1. Request #6. The admission that no documents are held automatically means that in COM(2011) 810 the Commission services have infringed article 28(2) of Regulation 45/2001 and article 8(2) of Commission Decision 2008/597/EC.

2. Request #7. It amounts to the admission that in COM(2011) 810 the Commission services have infringed article 8(3) of Commission Decision 2008/597/EC.

3. Request #8. The admission that no documents are held automatically means that in COM(2011) 810 the Commission services were recklessness negligent, and to an extreme degree, in that the said article 25 entails an infringement of Directive 95/46/EC. Such negligence is beyond belief in view of the Schecke Judgement of the Court of Justice. Moreover, the stark contrast of article 25 of COM(2011) 810 with Regulation 766/2008, where in the latter, firstly, the EDPS was consulted pursuant to aforesaid article 28(2), and secondly, the Customs Information Systems is required be compliant with both Directive 95/46/EC and also Regulation 45/2001, illustrates that the problem is endemic to the Research DGs and not to all Directorates-General.

4. Request #9. The admission that no documents are held automatically means that in COM(2011) 810 the Commission services dismally failed to duly advise the President and certain Members of the Commission about the profound implications of the said article 25 as regards the fundamental right of personal data protection.

In view of such failures, it is respectfully suggested that it is essential that the Secretariat-General review the DG RTD initial response to requests #6 - #9.

VI. OVERRIDING PUBLIC INTEREST

It is settled case-law that the widest possible access is to be granted to documents relating to EU legislative acts, even for acts that are in the course of being formally adopted by the EU legislature. DG RTD has manifestly disregarded the case-law.

The applicant has advanced arguments for an overriding public interest, especially in view of the provisions of article 25 of COM(2011) 810 and the manifest infringements of article 16(1) TFEU, Directive 95/46/EC and Regulation 45/2001 in several fundamental aspects of FP6 and FP7, such as proposal submission and evaluation, negotiation for the conclusion of contracts, execution of contracts/agreements, and above all the external financial audits of the Research DGs.

DG RTD just gave a stereotypical reply “the arguments submitted in your application do not however justify the existence of such an overriding public interest in the sense of the Regulation”. The DG RTD position:

“We consider that the interest in transparency does not outweigh the public interest of the Commission and its services in the confidentiality of its deliberations regarding the concerned matters of Horizon 2020. As already explained above, such confidentiality is of paramount importance in protecting the Commission's internal decision-making process in this specific case.”

is essentially a manifestly unsubstantiated claim. It is self-evident that DG RTD did not weigh the opposing interests of full transparency in the particular circumstances of this application against the protection of the Commission’s internal decision making process in this specific case.

In view of the all the foregoing, the applicant respectfully maintains that there is an overriding public interest for the full release of all documents the Secretariat-General will identify, following a diligent, fresh, search for documents.

VII. CONFIRMATORY APPLICATION

A confirmatory application is hereby respectfully submitted. It is fully justified to expect that the Secretariat-General will have due regard to all the foregoing analysis and arguments.

Yours faithfully,

Zois Zervos

Dear Research and Innovation (RTD),

Please forward this message to the Transparency Unit; it concerns the overdue reply to the confirmatory application GestDem No 2013/3350.

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Dear Madam, dear Sir,

I refer to the acknowledgement of the registration of the confirmatory application GestDem No 2013/3350 Ares(2014) 28754.

This is kind reminder that the time-limit of 15 working days (30 January 2014) has expired.

For the sake of a swift release of the documents and the widest possible access, I would like to take this opportunity to point out the following:

1. The application essentially concerns the Regulation No 1290/2013, OJ L 347/81 20.12.2013. Therefore the widest possible access is what the case-law dictates.

2. Article 25 of COM(2013) 810 was enacted as article 31 of Regulation 1290/2013, meaning that the issues for the former concern the latter.

3. The overriding public interest is even stronger now, since both the Parliament and the Council have apparently not spotted the 'collision' of article 31 with Regulation No 45/2001 and Directive 95/46/EC.

4. The role of the EDPS has also called into question as regards the 'collision' since the EDPS has apparently remained inactive even thought citizens had effectively drawn his attention to the 'collision'.

5. The primary aim of article 31(1) are the external financial audits, an area tainted by numerous grave illegalities in FP6 and FP7; the illegalities include the two false declarations in the prior notifications like DG INFSO DPO-3338.1 and DG RTD DPO-3398.1, and DG CNECT causing the President of the European Commission to misrepresent elementary facts in his letter to the Ombudsman of 30/8/2013 http://www.asktheeu.org/en/request/583/r.... Apparently, the misrepresentations were motivated by the DG CNECT desire to prevent disclosure to the public of further information about the DG INFSO risk-based audits.

Yours faithfully,

Zois Zervos