Dear Mr Sadagursky,

 

Thank you for contacting the European Court of Auditors (ECA).

 

We acknowledge receipt of your message of 26 October 2024. Your request is
currently under treatment and we will provide you with a reply in due
course.

 

Kind regards

ECA-INFO team

 

      ECA-INFO

Information Desk
12, rue Alcide De Gasperi - L-1615 Luxembourg
[1]eca.europa.eu

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Dear Mr Sadagursky,

 

Thank you for contacting the European Court of Auditors (ECA).

 

As a foreword, we would like to inform you that your request has been
treated according to the rules on public access to ECA documents, which
are set out in [1]Decision No 37/2023 of the Court of Auditors regarding
public access to Court documents ("the Court's Decision"). Please note
that Regulation 1049/2001 regarding public access to European Parliament,
Council and Commission documents is not applicable to our institution.

By your request, you seek access to certain documents related to the EASA
‘s negotiated procedure mentioned under point 3.4.8. of the [2]Annual
report on EU agencies for the financial year 2022.

 

With regard to your request of documents (samples audited at EASA, e.g.
the justification note, commitments, payments) related to the qualified
finding above-mentioned, please note that the under Article 4.2 of the
Court’s Decision, the ECA may refuse access to documents used in the
preparation of the audit observations.

If documents provided by ECA auditees were to be released to members of
the public requesting access to ECA documents, the ECA would breach the
professional secrecy obligation incumbent upon its staff and also its
auditees’ right to decide themselves whether their documents should or
should not be released to the public. Moreover, those auditees would be
less willing to cooperate with the ECA in the future.

Moreover, these documents constitute third party documents, of which the
ECA is not the author.

In accordance with Article 5.1 of the Court's Decision, the ECA is not
allowed to disclose these documents. In application of this provision, the
ECA shall confirm receipt of the application and supply the name of the
person, institution or body to whom the application must be addressed.
Therefore, you may consider contacting the agency via their dedicated
webpage: [3]Access to documents | EASA.

This notwithstanding, in application of Article 4.5 of the Court’s
Decision, the ECA may decide to allow access to a document where there is
an overriding public interest in its disclosure. We note that, contrary to
case-law*, you have not adduced any explanations as to how disclosing the
requested documents to you would serve an overriding public interest. In
line with Article 4.6 of the Court’s Decision “The overriding public
interest used to justify disclosure must be both objective and general in
nature. The person alleging the existence of an overriding public interest
shall state which specific circumstances justify disclosure of the
documents concerned.”

 

As regards your requests for information, more specifically, to be
provided with the TED link for this award, please note that if this
information is revealed, this will allow the identification of the
contractor that was awarded the contract. As you noted, the observation
was made in a confidential manner, as according to case-law, the ECA is
not allowed to identify by name in its reports third parties (e.g. such as
contractors in public procurement procedures) that are not subject in
principle to its supervision, save under exceptional circumstances (case
[4]C-315/19 P Ismeri v Court of Auditors, paragraphs 39 and 40).

By revealing information that could allow the identification of third
parties which were not named in the ECA’s report, the ECA may incur
liability, in the event that the use of this information is prejudicial
for the third party.

As regards the identity of the person or service who prepared the tender
specifications, we are not in possession of such specific information.
Even if we detained this information, we would still not be in position to
reveal it, due to protection of personal data requirements and because the
information would be based on third-party documents (as explained above).

 

Furthermore, with regard to the possible recovery of the funds, please
note that we are not in possession of such information. As a principle,
the ECA’s audit observations have no binding effect. Moreover, our
findings on irregular payments do not automatically imply that the money
should be recovered. You may consider requesting this information to EASA
directly.

 

As regards a possible OLAF investigation, please note that information
about OLAF investigations is confidential by nature and, even if we had
it, we could not reveal it. In principle, our findings on irregular
payments do not imply fraud, but if we identify a case of suspected fraud,
we communicate it to OLAF/EPPO in accordance with the applicable rules.

 

In accordance with Article 4(3) fourth indent of the Court’s Decision,
“The ECA shall refuse access to a document where disclosure would
undermine the protection of […]

— inspections, investigations and audits.”

 

Please be informed that as regards your request for access to documents,
under Article 9 of the Court’s Decision, you can ask the ECA to reconsider
its position within one month of receiving this reply. Your request for
reconsideration should be submitted to the President of the ECA,
preferably using the [5]contact form available on the ECA website, or by
e-mail to: [6][ECA request email].

 

Kind regards

ECA-INFO team

 

* according to which it is “for the party alleging an overriding public
interest, within the meaning of that clause, to prove that interest”
(judgment of 25 September 2014, Spirlea/Commission ([7]T-669/11),
paragraph 97).

 

      ECA-INFO

Information Desk
12, rue Alcide De Gasperi - L-1615 Luxembourg
[8]eca.europa.eu

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From: ECA-INFO <[ECA request email]>
Sent: Wednesday, October 30, 2024 3:42 PM
To: Mordechai Sadagursky <[FOI #15151 email]>
Cc: ECA-INFO <[ECA request email]>
Subject: RE: access to documents request - audit finding : irregular
negotiated procedure at EASA

 

Dear Mr Sadagursky,

 

Thank you for contacting the European Court of Auditors (ECA).

 

We acknowledge receipt of your message of 26 October 2024. Your request is
currently under treatment and we will provide you with a reply in due
course.

 

Kind regards

ECA-INFO team

 

      ECA-INFO

Information Desk
12, rue Alcide De Gasperi - L-1615 Luxembourg
[9]eca.europa.eu

  　 Please consider the environment before printing this email

 

 

 

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