Presentations to third parties about OLAF's actions in combating fraud in European Union Direct Expenditure

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Mr. Orestis BEKAS

Dear European Anti-Fraud Office (OLAF),

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:

Document SWD(2012) 445 final is a Commission Staff working paper entitled “Annual Overview with Information on the Results of the Hercule II Programme in 2011 (Article 7 of Decision 878/2007 of 23 July 2007)”.

I. Conference in Ostia, Italy, 12-14 October 2011

Pages 16-17 show that in 2011 OLAF organised 10 Conferences. One of them was held on 12 – 14 October in Ostia – IT, was entitled “Fighting fraud in the field of the European Union Direct Expenditure”, and had the objective “To reinforce cooperation between OLAF and its operational partners in the Member States in identifying, investigating and preventing fraud affecting direct expenditure”.

I would be obliged if OLAF would provide me with copies of the following documents

1. The slide presentations.

2. The invitation (or similar documents) to speakers/presenters who made presentations, who were not OLAF officials.

3. Any documents handed out to officials of Member States on the occasion of the Conference, such as a brochure.

II. Spider ‘case’ concerning directly managed expenditure, OLAF external investigation

I would be obliged if OLAF would provide me with copies of the following documents

4. OLAF presentations to national authorities about the Spider 'case'.

5. Invitations to persons concerned (suspects of wrongful acts to the detriment of the EU budget) to attend interviews in OLAF’s offices in Brussels, or in the Commission’s representations in the Member States.

6. For each invitation released under request #5, the document informing beforehand a national authority about the conduct interview.

Regarding the documents requested under #5 and #6 above, all that is required to comply with articles 4(1)(b) and 4(2) third intend of Regulation 1049/2001 is the redaction of the name of the person concerned. The reference number of the OLAF investigation is not to be redacted, as it does not fall under the latter exception.

Relevant to request #6 is that the interview would have taken place in a territory in which the administrative law of any Member State does not apply. It is noted that in OF/2012/0617 a Maltese official was present in the interview of a person concerned that took place in Malta, where his rights under the law of Malta were read out to him by that official (all this is public information).

III. Overriding public interest

There are doubts to what extent OLAF was authorised by Community law to conduct external investigations of FP5-FP6 contractors and FP7 beneficiaries prior to 1/10/2013 when Regulation 883/2013 entered into force. Article 3(2) reads:

“With a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with a grant agreement or decision or a contract concerning Union funding, the Office may, in accordance with the provisions and procedures laid down by Regulation (Euratom, EC) No 2185/96, conduct on- the-spot checks and inspections on economic operators”

Annex II of that Regulation forthrightly states that in Regulation 1073/99 there was no provision corresponding to that article 3(2). Annex II is an integral part of Regulation 883/2013 and is not there for the convenience of the reader. Annex II produces legal effects. Consequently, it must be concluded that Regulation 1073/99 did not empower OLAF to investigate FP6 contracts and FP7 grant agreements.

Regulation 2185/96 and 2988/95 concern infringements of “Community law” and not private law contracts such as FP6 contracts and FP7 grant agreements. In several cases the General Court has held that in FP5, FP6 research contracts the Commission does not rely on its prerogatives as a public authority. The Court has dismissed arguments that the Commission is bound to observe the principle of sound administration – which is applies when the Commission acts as a public authority - towards contractors of research projects, when the legal relationship is governed by a contract. This rather conclusively proves that in such a particular context the Commission (which the same legal person with OLAF) could not rely on its prerogatives as a public authority. Moreover and in those circumstances, when OLAF interviews a person concern the contractual provisions FP6.II.29 and FP7.II.22 allowing OLAF to exercise its powers under Regulation 2185/96 do not apply, as the person concerned is a third party to the contract.

Concerning compliance with Regulation 45/2001, a check of the OLAF article 25 prior notifications and article 27 prior checks indicates that OLAF had neither filed a prior notification nor had it informed the EDPS about external investigations of FP5-FP6 contractors and FP7 beneficiaries.

The two false statements of the four prior notifications of the Research DGs DG INFSO DPO-3338.1 , DG RTD DPO-3398.1, DG ENTR DPO-3334.1 and DG MOVE DPO-3420.1

“This processing has been submitted to the EDPS who has concluded that article 27 is not applicable”

“2. Subcontractors - ”

show that every single external financial audit of the Research DGs is tainted by grave infringements of Regulation 45/2001, that reached the point of making false statement in statutory documents and in plain public view. Since the OLAF external investigations have been too closely associated with these external financial audits, this further fuels the already serious doubts about the sound legal basis of the OLAF Spider case investigations.

All the above cast extremely serious doubts to what extent OLAF was duly empowered by Community law to carry out external investigations in the context of FP5-FP6 contracts and FP7 grant agreements. Even if OLAF were empowered, the taint of the above-mentioned false-statements cannot be ignored. This applies in particular to the DG INFSO audits, due to the very close association of the former DG INFSO S.5 Unit with the OLAF A.3 Unit.

The documents released under request #5 and #6 will shed light on whether OLAF had observed the procedural guarantees of Union and national law about the treatment of suspects in its external investigations in the Spider ‘case’.

In conclusion, the disclosure of the requested documents will enable to scrutinise the extent to which OLAF had been conducting lawful external investigations of FP5-FP6 contracts and FP7 grant agreements.

The overriding public interest is the scrutiny of what it appears prima facie to be OLAF’s investigations without power conferred by Union law.

Yours faithfully,

Mr. Orestis BEKAS

Office européen de lutte antifraude

Dear Mr Bekas,

Thank you for your e-mail dated 13 January 2013. We hereby acknowledge receipt of your request, which was registered on 15 January 2013 under reference number THOR(2014)1031.

In accordance with the Code of Good Administrative Behaviour, your request will be handled within 15 working days. The time limit will expire on 5 February 2014. In case this time limit need to be extended, you will be informed in due course.

Yours faithfully,

European Commission
DG OLAF
Unit C.4- Legal advice

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Mr. Orestis BEKAS

Dear European Anti-Fraud Office (OLAF),

Thank for your email of 22 January 2014, the contents of which are fully noted.

I feel compelled to draw OLAF's attention to the following:

1. The initial response has not expressly acknowledged that it concerns the registration of an application in accordance to Regulation 1049/2001.

2. On the contrary, it refers to the "Code of Good Administrative Behaviour", which concerns replying to enquiries under an entirely different legal basis.

3. In view of (1) and (2) above, that author of the initial response is Unit C.4 - Legal Advice strongly suggests that OLAF has decided to treat the application completely disregarding its obligations under the administrative procedure of Regulation 1049/2001.

4. As regards requests #1 - #3, there have been publications of third parties about the speakers and the content of the presentations. Apparently, the authors of these publications lawfully made them. Consequently, OLAF may not refuse to grant access to the relevant documents.

5. Under Regulation 1049/2001 OLAF is obliged to release the documents falling under requests #5 & #6, by redacting only the parts allowing the identification of legal and natural persons. Failure to partially release those documents - regardless of the justification - will automatically prove that in those particular interviews OLAF had acted beyond the powers vested on it by the EU legislature.

In the light of all the foregoing I expect that OLAF would promptly acknowledge the registration of an application under Regulation 1049/2001.

Yours faithfully,

Mr. Orestis BEKAS

Office européen de lutte antifraude

Dear Mr Bekas,

Please accept our apologise for sending you an incorrect acknowledgment receipt by clerical mistake.
Please find hereunder the correct version.

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Dear Mr Bekas,

We acknowledge receipt of your e-mail dated 13 January 2014 registered in OLAF with registration number THOR(2014)1031 on 15 January 2014, concerning an "access to information request - Presentations to third parties about OLAF's actions in combating fraud in European Union Direct Expenditure".

You may expect to receive a reply from OLAF within 15 working days of the registration of your request.

Best regards,

European Commission
DG OLAF
Unit C.4- Legal advice

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Dear European Anti-Fraud Office (OLAF),

I refer to the application under Regulation No 1049/2001 and the registration THOR(2014)1031 on 15/1/2014, according to which OLAF would provide an initial reply by the 6th of February http://www.asktheeu.org/en/request/prese....

I would appreciate if OLAF would inform me at its earliest convenience the status of the initial reply.

Yours faithfully,

Mr. Orestis BEKAS

Office européen de lutte antifraude

Dear Mr Bekas,

We refer to your e-mail dated 13 January requesting access to certain information. Your application is currently being handled. However, in view of the difficulty in identifying the documents requested, we will not be in a position to complete the handling of your application within this week. An extended time limit is needed in order to supply you with an answer. Therefore we need to extend the time limit to the end of next week.

We apologize for this delay and for any inconvenience this may cause.

Yours faithfully,


European Commission
DG OLAF
Unit C.4- Legal advice

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Office européen de lutte antifraude

Dear Mr Bekas,

We refer to your e-mail dated 13 January requesting access to certain information. Your application is currently being handled. We will not be in a position to complete the handling of your application within this week because we are still waiting for confirmation from external parties to authorise disclosure of their documents. As soon as we shall receive these confirmations we shall send you the requested information.

We apologize for this delay and for any inconvenience this may cause.

Yours faithfully,


European Commission
DG OLAF
Unit C.4- Legal advice

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Office européen de lutte antifraude

Dear Mr Bekas,
 
We refer to your request for access to documents of 13 January 2014.  We
wish to inform you that we are in the process of preparing a response.
 However, in view of the complexity of the case, we will need 15
additional working days to provide you with our response.
 
Thank you for your understanding in this matter.
 
Yours sincerely,
 
 
EUROPEAN COMMISSION
EUROPEAN ANTI-FRAUD OFFICE (OLAF)
Directorate C: Investigation Support
Unit C.4 – Legal Advice

Rue Joseph II, 30 • B-1000 Brussels (Belgium)
[1]http://ec.europa.eu/anti_fraud
Our policy regarding personal data protection can be viewed on
[2]http://ec.europa.eu/anti_fraud/about-us/...
 
 
 
 

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