OCM(2021)18760 - 19/06/2021
Directorate A - Expenditure - Operations and
Ms Elodie Lamer
Investigations
Le Soir
The Director
100 rue Royale
1000 Bruxelles
ask+request-9419-
xxxxxxxx@xxxxxxxx.xxx
Via e-mail and registered mail
with AR
Brussels
olaf.d.2(2021)20888
Subject:
Your application for public access to documents
Case No OC/2017/0803/A4
Dear Ms Lamer,
We refer to your emails dated 4 May and 6 May 2021, by which you submitted an application
for access to documents under Regulation (EC) No 1049/20011 regarding public access to
European Parliament, Council and Commission documents.
You requested access to the following documents:
All documents related to recommendations about the use of FEDER in Belgium for the
period 2014-2020.
1. Documents in the public domain
In response to your request, OLAF can provide you with the following information, which is
available to the public:
A statistical evaluation of irregularities accompanies the PIF report each year. In the last
few years, there have been country factsheets for each Member State. In the 2019 PIF
report, the factsheet for Belgium can be found on page 193 of part 3 of the statistical
evaluation:
https://ec.europa.eu/anti-fraud/about-us/reports/communities-reports_en
Although the factsheet is not detailed, it includes ERDF (FEDER) for the programming period
2014-2020 (irregularities, financial amounts involved, Fraud Detection Rate, Irregularity
Detection Rate).
1OJ L 145, 31.05.2001, page 43.
OLAF Rue Joseph II, 30 B-1049 Brussels (Belgium) Tel: +32 (0)2 299 11 11 Web:
http://ec.europa.eu/anti_fraud
Office: J-30 06/012 Tel: +32 (0)2 2994780 E-mail: xxxxxxx.xxxxxxxx@xx.xxxxxx.xx
We also wish to call your attention to the JIT Palinka case to which a Belgian company is
linked in the area of ERDF in Romania, which is presented on pages 19 and 20 of the OLAF
Report 2020:
http://ec.europa.eu/anti-fraud/sites/default/files/olaf_report_2020_en.pdf
and to the Fake green credentials case, which is presented on pages 30 - 31 of the OLAF
report 2019:
http://ec.europa.eu/anti-fraud/sites/default/files/olaf_report_2019_en.pdf
Please find below our response to your request for public access to the documents under
Regulation 1049/2001.
2. Preliminary remarks
OLAF wishes to clarify from the outset that it is is legally bound to treat all information it
obtains during its investigations as confidential and subject to professional secrecy, in
particular pursuant to Article 339 of the Treaty on the functioning of the European Union,
Article 10 of Regulation (EU, Euratom) No 883/2003 and Article 17 of the Staff Regulations.
However, the purpose of Regulation 1049/2001 is to give access to documents to the public
at large. Any document disclosed to an individual under this Regulation then becomes
automatically available to any other member of the public whenever there is a subsequent
request. Consequently, attention is drawn to you to the fact that documents disclosed under
this Regulation enter the public domain.
3. Assessment of the documents under Regulation (EC) 1049/2001 – relevant
applicable exceptions – presumption of non-accessibility
Having carefully considered your application, OLAF regrets to inform you that your
application cannot be granted, as disclosure is prevented by exceptions to the right of access
laid down in Article 4 of Regulation (EC) 1049/2001 based on the following considerations.
The requested documents are part of OLAF’s investigation files. The cases have been closed
and OLAF’s final report has been transmitted to competent authorities accompanied by
recommendations indicating possible further action in accordance with Article 11 of
Regulation 883/2013.
The requested documents are covered by the exception under Article 4(2) third indent of
Regulation 1049/2001, which stipulates that the institutions shall refuse access to a document
where disclosure would undermine the protection of the purpose of inspections, investigations
and audits, as well as the protection of the decision-making process as referred to Article
4(3) second sentence of the Regulation.
The General Court recognised2 the existence of a general presumption of non-accessibility
under which the disclosure to the public under Regulation 1049/2001 of documents related
to OLAF investigations could fundamentally undermine the objectives of the investigative
activities both now and in the future.
The presumption is based on the consideration that in order to determine the scope of
Regulation 1049/2001, account must be taken of relevant sectoral rules governing the
administrative procedure under which the documents requested under Regulation
1049/2001 were gathered3. In the case at hand, Regulation 883/2013, which governs
OLAF’s administrative activity provides for the obligation of confidentiality with regard to all
information gathered during investigations.
2 Judgment of 26 May 2016,
IMG v
Commission, T-110/15, ECLI:EU:T:2016:322, paragraphs 28-50.
3 Judgment Court of Justice of 28 June 2012,
Agrofert Holding v
Commission, C-477/10 P,
EU:C:2012:394,
paragraphs 50-59; judgment of the Court of Justice of 29 June 2010,
Commission v
Technische Glaswerke
Ilmenau, C-139/07 P, EU:C:2010:376, paragraph 55 ff.; judgment of the General Court of 26 May 2016,
IMG v
Commission, T-110/15, ECLI:EU:T:2016:322, paragraphs 29-34.
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The protection of confidentiality of information in the legal framework applicable to OLAF
investigations aims, on the one hand, at safeguarding the successful conduct of an
investigation in the public interest and, on the other hand, at safeguarding the legitimate
interests of the individuals, so that the information they provide is used only for the
purposes of the investigation.
The protection of confidentiality extends to closed cases. In particular, it is constant
jurisprudence that the protection of OLAF’s investigations extends to their follow-up, to the
extent that that follow-up takes place within a reasonable period4.
The protection of confidentiality also extends to cases that are definitively closed5. In
addition, having regard to the nature of the information processed in the context of OLAF
investigations, the publication of the sensitive information contained in the OLAF case file is
likely to harm the protection of personal data regardless of whether an investigation is
pending or closed. The prospect of such publication after an investigation is closed runs the
risk of adversely affecting the willingness of informants and of those who hold relevant
information to cooperate with OLAF when such a procedure is pending, and that could
seriously compromise the effectiveness of OLAF’s investigative activities.
According to the case-law, to grant access to OLAF’s investigation file, even partially, could
compromise the effective use of those elements by the national authorities, given that the
persons suspected of irregularities could act in such a way as to prevent the proper conduct
of the various procedures or investigations which those authorities might decide to initiate.
In addition, having regard to the nature of the information processed in the context of OLAF
investigations, the publication of the sensitive information contained in the OLAF case file
might harm the protection of personal data and/or the integrity of persons involved in the
investigation, as sources of information, witnesses, persons concerned, officials of the
competent authorities and OLAF officials.
In accordance with the case-law, that presumption applies in full regardless of whether the
request for access to documents concerns an on-going or a closed investigation6.
In view of the foregoing, the documents in OLAF’s investigation files fall under the
presumption of non-accessibility as documents containing information collected during an
OLAF investigation and subject to confidentiality professional secrecy rules. Consequently,
the documents requested are exempt, in principle and in full, from disclosure to the public,
unless the applicant demonstrates that the presumption is not applicable because an
overriding public interest justifies the disclosure of the requested documents.7
4. Partial Access
OLAF has examined the possibility of granting partial access to the requested documents in
accordance with Article 4(6) of Regulation 1049/2001.
Partial access is not possible, given that the information the documents contain falls entirely
under the general presumption of applicability of Article 4(2), third indent of Regulation
1049/2001 in the context of inspections and audits.
5. Overriding public interest in disclosure
The exceptions laid down in Article 4(2) and 4(3) of Regulation 1049/2001 apply unless
there is an overriding public interest in disclosure of the documents. For such an interest to
4Judgment of the General Court of 26 May 2016,
IMG v
Commission, T-110/15, ECLI:EU:T:2016:322, paragraphs
33, 35; judgment of 6 July 2006 in
Franchet and Byk v
Commission, T-391/03 and T-70/04, EU:T:2006:190,
paragraphs 108 to 113; judgment of the General Court of 26 April 2016,
Strack v
Commission, T-221/08,
EU:T:2016:242, paragraph 162.
5 Judgment of the General Court of 26 April 2016,
Strack v
Commission, T-221/08, EU:T:2016:242, paragraphs
150 to 164.
6 Ibid.;
7 Ibid., paragraph 91.
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exist, it, firstly, has to be a public interest and, secondly, it has to outweigh the interest
protected by the exception to the right of access.
OLAF understands the importance of transparency of the functioning of the EU institutions
and particularly of the European Commission. However, given the nature of the anti-fraud
investigations conducted by OLAF, and the confidential nature of information collected, such
as sources of information, content of case files and reputation of natural persons, OLAF
considers there are no elements that would show the existence of an overriding public
interest in disclosing the requested documents.
In addition, the requested documents also involve the protection of privacy and integrity of
individuals (Article 4(1)(b) of Regulation 1049/2001), where overriding public interest in
disclosure is not applicable.
6. Confirmatory application
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting OLAF to review this position. Pursuant to Article 4 of
Commission Decision 2001/937/EC, ECSC, Euratom, such a confirmatory application should
be addressed within 15 working days upon receipt of this letter to the Director General of
OLAF.
Any confirmatory application to OLAF should be sent to the following address:
Mr Ville ITÄLÄ
Director General OLAF
European Commission
B-1049 BRUXELLES
BELGIUM
Your attention is drawn to the privacy statement below.
Yours sincerely,
Signed Electronically
on 19/06/2021 at 21:43 by HOFMANN Margarete [DIRECTOR]
Privacy notice
Pursuant to Articles 15 and 16 of Regulation (EU) 2018/1725 on the protection of natural persons with regard to
the processing of personal data by Union Institutions, bodies, offices and agencies and of the free movement of
such data, please be informed that your personal data are stored in OLAF’s electronic and paper files concerning
this matter for the purposes of ensuring conformity with the requirements of Regulation 1049/2001 and
Commission Decision 2001/937/EC.
The categories of your personal data being processed are identification and contact data and any other personal
data provided by or to you in relation to your request. Officials within OLAF and other Commission services
responsible for dealing with requests for access to documents, and third parties, within the meaning of Articles
4(4) and 3(b) of Regulation 1049/2001, and Article 5 of Commission Decision 2001/937/EC, have access to your
personal data. Personal data that appear on the requested document may only be disclosed to the applicant
following an assessment under Article 9(b) of Regulation (EU) 2018/1725. There is no automated decision process
by OLAF concerning any data subject.
All documentation concerning OLAF investigations are stored in the relevant OLAF investigation files and are
retained for a maximum of 15 years. Thus personal data contained in requests for public access to documents
concerning OLAF investigations are retained for a maximum of 15 years.
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You have the right to request access to your personal data, rectification or erasure of the data, or restriction of
their processing. Any request to exercise one of those rights should be directed to the Controller (
OLAF-FMB-DATA-
xxxxxxxxxx@xx.xxxxxx.xx). You may contact the Data Protection Officer of OLAF (
OLAF-FMB-
xxx@xx.xxxxxx.xx) with regard to issues related to the processing of your personal data under Regulation (EU)
2018/1725.
You have the right to have recourse to the European Data Protection Supervisor
(xxxx@xxxx.xxxxxx.xx) if you
consider that your rights under Regulation (EU) 2018/1725 have been infringed as a result of the processing of
your personal data by OLAF.
The complete privacy statements for this and all other OLAF personal data processing operations are available at
http://ec.europa.eu/anti_fraud.
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