Dear Secretariat General (SG),

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 refer to the letter of the President of the European Commission Ares(2013)2952891 - 30/08/2013, http://www.asktheeu.org/en/request/583/r..., with which the President notified the Ombudsman about the Commission’s position regarding the undersigned’s application of 21/6/2013 for documents held by the Ombudsman.

The application lodged with the Ombudsman on 26/6/2013 concerns, among others, documents about a presentation DG INFSO officials gave to the Ombudsman staff on 18/2/2011 concerning the DG INFSO risk-based audits. The presentation is referred to in the Ombudsman Annual Activity Report of Year 2011, http://www.asktheeu.org/en/request/forme....

The application lodged with the Ombudsman is under Regulation No 1049/2001, which applies to the Ombudsman for documents not related to complaints and inquiries for maladministration. Presumably, the Ombudsman requested the Commission’s opinion pursuant to article 4(4) of Regulation No 1049/2001.

I. DG INFSO RISK-BASED AUDITS

The risk-based audits entail grave infringements of Regulation No 45/2001 that have culminated to the inclusion of two false statements in the article 25 of Regulation prior notification DG INFSO DPO-3338.1. According to article 1, second indent, of Commission Decision 597/2008 the DPO-3338.1 data controller is personally liable for the two false statements, which is most probably a criminal offence.

For a detailed description of the grave illegalities of the DG INFSO risk-based audits the reader is referred to undersigned’s confirmatory application lodged with the Ombudsman on 20/10/2013, http://www.asktheeu.org/en/request/forme..., section “4.1. GRAVE BREACHES OF THE FUNDAMENTAL RIGHT OF PERSONAL DATA PROTECTION – FALSE STATEMENTS IN STATUTORY DOCUMENTS POSTED IN THE EUROPA WEBSISTE – CRIMINAL OFFENCES OF DATA CONTROLLERS”.

II. COMMISSION SERVICES MISREPRESENTATIONS TO THE PRESIDENT

The following paragraphs repeat what is stated in section 1 of the undersigned's confirmatory application lodged with the Ombudsman on 20/10/2013.

The ‘confirmatory application’ referred to in the President’s letter is GestDem 3074/2013, which was lodged with the Commission on 7/6/2013; insofar the presentations of risk-based audits are concerned, the applications lodged with the Commission on 7/6/2013 and with the Ombudsman on 21/6/2013 have the same object.

The end of the first paragraph of page 2 of the President’s letter reads:

“A confirmatory application has not been received so far. However, the deadline for appeal has not been expired yet.”

However:

1. The confirmatory application GestDem 3074/2013 was lodged on 29/7/2013, in which 14 recipients were in cc, including the European Court of Auditors, the Ombudsman, the EDPS, four Members of the European Parliament, and the Data Protection Authority of Greece.

2. In registering the confirmatory application GestDem 3074/2013 on 13/9/2013, the Secretariat-General acknowledged that the latter application was lodged via email on 29/7/2013.

3. Since the DG CNECT initial reply is the document Ares(2013)2588470 - 08/07/2013, the deadline of lodging a confirmatory application – 15 working days later and without counting the 8th of July – is the 29th of July 2013

4. Under no circumstances a confirmatory application for GestDem 3074/2013 lodged with the Secretariat-General on 30/8/2013 or thereafter would have been compliant within the 15 working days statutory limit, i.e. beyond 31 July 2013, given that all correspondence with the Commission services has been taking place via email.

It is self-evident that the Commission services made wilful and intentional misrepresentation of facts to the President insofar the time-limits and the status (as of 30/8/2013) of the confirmatory application GestDem 3074/2013 is concerned. Since the Ombudsman released the President’s letter in asktheeu.org, this is now public information.

The Commission services have thus caused the President to misrepresent simple facts to his letter to the Ombudsman.

III. OBSERVATIONS – OVERRIDING PUBLIC INTEREST

We are now faced with a situation where the Commission services, starting from misrepresenting facts in DPO-3338.1 – thereby the data controller incurring liabilities for a criminal offence, infringement of article 49 of Regulation No 45/2001 and several provisions of the Staff Regulations – have reached the point of misrepresenting facts to the President in order to unlawfully prevent further disclosure about the grave illegalities of the DG INFSO risk-based audits. In other words, the Commission services have dragged the President into misrepresenting facts, presumably with the President’s cabinet not informed at all about the misrepresentation.

The applicant, and most probably the public, finds hard to believe that the Commission’s administrative departments have dared to perpetrate such utterly deplorable and wrongful acts.

Perhaps the administrative department are so blinded in their attempts to prevent further disclosure of the grave illegalities of the DG INFSO risk-based audits, that they lost sight that their mission is to serve the guardian to the Treaties.

Even if the DG INFSO risk-based audits are to be seen as a fringe matter in relation to whole portfolio of the European Commission - in the particular circumstances of the two applications pursuant to Regulation No 1049/2001 - unlawfully attempting to prevent further disclosures casts serious doubts about the integrity of several administrative departments, perhaps including the Secretariat-General.

In litigation before the General Court the Commission may be compelled to fully disclose a whole range of documents about the grave illegalities of the DG INFSO risk-based audits. Moreover, data subjects may bring civil actions before the national Courts about the infringements of national personal data protection legislation by the audit firms – external contractors – used by DG INFSO in risk-based audits. Even criminal complaints may be filed, since the infringement of the national personal data protection legislation was for financial gain, which is typically an offence. In such kind of litigation before the National Courts, it is all but certain that the audit firms will rely on Commission instructions and manuals about what tasks the DG INFSO risk-based audits entailed, just in order to defend themselves. This will inevitably release documents that the Commission services are so keen to prevent their disclosure. However, this is battle that the Commission can never win. One way or another, the documents detailing the DG INFSO gravely illegal policies on the risk-based audits will come out in public.

In the applicant’s view, tainting in full public view the integrity of the Commission services is too high a price to pay for attempting to unlawfully prevent further disclosures about the DG INFSO risk-based audits, which will happen anyway.

The above considerations amount to an overriding public interest for the full release of the documents requested hereunder.

IV. REQUEST FOR DOCUMENTS

The documents applied for are about the circumstances under which the President’s letter was drafted and some underlying matters. Copies of the following documents are kindly requested:

1. The documents, such as emails, note to file, meeting minutes, records of telephone conversations, or equivalent, with which the Commission services kindly requested the cabinet of the President to arrange that the letter Ares(2013)2952891 - 30/08/2013 be drawn up and signed.

2. Any annexes and appendices to the documents under (1) above.

3. The preparatory documents (including correspondence), if any, exchanged between the Legal Services, the Secretariat-General, and DG CNECT about the letter Ares(2013)2952891 - 30/08/2013.

4. DG CNECT documents about the presentation of the DG INFSO risk-based audits on 18/2/2011 to the Ombudsman. Such documents might be emails exchanged with the Ombudsman about the proposal of DG INFSO to organise the presentation, organisational aspects (e.g. a request to audit record the presentation), note to file from telephone conversations, the Ombudsman’s acceptance of the proposal for a presentation, and so on.

5. Documents drawn up by DG INFSO official who made the presentation about the risk-based audits on 18/2/2011 and held by the Appointing Authority, in which the official objects to the disclosure by the Ombudsman of the presentation’s audio recording.

6. Documents drawn up by the Appointing Authority reflecting, commenting, approving, or equivalent, the objections under (5) above.

7. Documents about the audio/video recording of an official presentation by a Commission official before another Institution, or Union body, or a public event being construed as containing personal data of the official. It is important to note that the presentation in question is part of discharging official duties.

8. Documents informing the President, his cabinet, or any other Member of the Commission – including their cabinets- about the infringements of Regulation No 45/2001 that the external financial audits of the Research DGs have invariably entailed.

V. NOTIFICATION TO INTERESTED THIRD PARTIES

Due to the extreme seriousness of the underlying matters, the applicant intends to notify this application and subsequently exchanged documents about it to interested third parties.

Any such notification will also be communicated to the Commission services via asktheeu.org to ensure full visibility according to the objectives pursued by asktheeu.org.

Yours faithfully,

Zois Zervos

Dear Secretariat General (SG),

I am resending an application for documents which for some reason the Commission email server regarded it as spam.

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

Dear Secretariat General (SG),

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 refer to the letter of the President of the European Commission Ares(2013)2952891 - 30/08/2013,
http://www.asktheeu.org/en/request/583/r...,
with which the President notified the Ombudsman about the Commission’s position regarding the undersigned’s application of 21/6/2013 for documents held by the Ombudsman.

The application lodged with the Ombudsman on 26/6/2013 concerns, among others, documents about a presentation DG INFSO officials gave to the Ombudsman staff on 18/2/2011 concerning the DG INFSO risk-based audits. The presentation is referred to in the Ombudsman
Annual Activity Report of Year 2011, http://www.asktheeu.org/en/request/forme....

The application lodged with the Ombudsman is under Regulation No 1049/2001, which applies to the Ombudsman for documents not related to complaints and inquiries for maladministration. Presumably, the Ombudsman requested the Commission’s opinion pursuant to article 4(4) of Regulation No 1049/2001.

I. DG INFSO RISK-BASED AUDITS

The risk-based audits entail grave infringements of Regulation No 45/2001 that have culminated to the inclusion of two false statements in the article 25 of Regulation prior notification DG INFSO DPO-3338.1. According to article 1, second indent, of Commission Decision 597/2008 the DPO-3338.1 data controller is
personally liable for the two false statements, which is most probably a criminal offence.

For a detailed description of the grave illegalities of the DG INFSO risk-based audits the reader is referred to undersigned’s confirmatory application lodged with the Ombudsman on 20/10/2013, http://www.asktheeu.org/en/request/forme...,
section “4.1. GRAVE BREACHES OF THE FUNDAMENTAL RIGHT OF PERSONAL DATA PROTECTION – FALSE STATEMENTS IN STATUTORY DOCUMENTS POSTED IN THE EUROPA WEBSISTE – CRIMINAL OFFENCES OF DATA CONTROLLERS”.

II. COMMISSION SERVICES MISREPRESENTATIONS TO THE PRESIDENT

The following paragraphs repeat what is stated in section 1 of the undersigned's confirmatory application lodged with the Ombudsman on 20/10/2013.

The ‘confirmatory application’ referred to in the President’s letter is GestDem 3074/2013, which was lodged with the Commission on 7/6/2013; insofar the presentations of risk-based audits are concerned, the applications lodged with the Commission on 7/6/2013
and with the Ombudsman on 21/6/2013 have the same object.

The end of the first paragraph of page 2 of the President’s letter reads:

“A confirmatory application has not been received so far. However, the deadline for appeal has not been expired yet.”

However:

1. The confirmatory application GestDem 3074/2013 was lodged on 29/7/2013, in which 14 recipients were in cc, including the European Court of Auditors, the Ombudsman, the EDPS, four Members of the European Parliament, and the Data Protection Authority of
Greece.

2. In registering the confirmatory application GestDem 3074/2013 on 13/9/2013, the Secretariat-General acknowledged that the latter application was lodged via email on 29/7/2013.

3. Since the DG CNECT initial reply is the document
Ares(2013)2588470 - 08/07/2013, the deadline of lodging a confirmatory application – 15 working days later and without counting the 8th of July – is the 29th of July 2013

4. Under no circumstances a confirmatory application for GestDem 3074/2013 lodged with the Secretariat-General on 30/8/2013 or thereafter would have been compliant within the 15 working days statutory limit, i.e. beyond 31 July 2013, given that all correspondence with the Commission services has been taking place via email.

It is self-evident that the Commission services made wilful and intentional misrepresentation of facts to the President insofar the time-limits and the status (as of 30/8/2013) of the confirmatory application GestDem 3074/2013 is concerned. Since the Ombudsman
released the President’s letter in asktheeu.org, this is now public information.

The Commission services have thus caused the President to misrepresent simple facts to his letter to the Ombudsman.

III. OBSERVATIONS – OVERRIDING PUBLIC INTEREST

We are now faced with a situation where the Commission services, starting from misrepresenting facts in DPO-3338.1 – thereby the data controller incurring liabilities for a criminal offence, infringement of article 49 of Regulation No 45/2001 and several provisions of the Staff Regulations – have reached the point of misrepresenting facts to the President in order to unlawfully prevent further disclosure about the grave illegalities of the DG INFSO risk-based audits. In other words, the Commission services have dragged the President into misrepresenting facts, presumably with the President’s cabinet not informed at all about the misrepresentation.

The applicant, and most probably the public, finds hard to believe that the Commission’s administrative departments have dared to perpetrate such utterly deplorable and wrongful acts.

Perhaps the administrative department are so blinded in their attempts to prevent further disclosure of the grave illegalities of the DG INFSO risk-based audits, that they lost sight that their mission is to serve the guardian to the Treaties.

Even if the DG INFSO risk-based audits are to be seen as a fringe matter in relation to whole portfolio of the European Commission - in the particular circumstances of the two applications pursuant to
Regulation No 1049/2001 - unlawfully attempting to prevent further disclosures casts serious doubts about the integrity of several administrative departments, perhaps including the Secretariat-General.

In litigation before the General Court the Commission may be compelled to fully disclose a whole range of documents about the grave illegalities of the DG INFSO risk-based audits. Moreover, data subjects may bring civil actions before the national Courts about the infringements of national personal data protection
legislation by the audit firms – external contractors – used by DG INFSO in risk-based audits. Even criminal complaints may be filed, since the infringement of the national personal data protection legislation was for financial gain, which is typically an offence. In such kind of litigation before the National Courts, it is all but certain that the audit firms will rely on Commission instructions and manuals about what tasks the DG INFSO risk-based audits entailed, just in order to defend themselves. This will inevitably release documents that the Commission services are so keen to prevent their disclosure. However, this is battle that the Commission can never win. One way or another, the documents detailing the DG INFSO gravely illegal policies on the risk-based audits will come out in public.

In the applicant’s view, tainting in full public view the integrity of the Commission services is too high a price to pay for attempting to unlawfully prevent further disclosures about the DG INFSO risk-based audits, which will happen anyway.

The above considerations amount to an overriding public interest for the full release of the documents requested hereunder.

IV. REQUEST FOR DOCUMENTS

The documents applied for are about the circumstances under which the President’s letter was drafted and some underlying matters.

Copies of the following documents are kindly requested:

1. The documents, such as emails, note to file, meeting minutes, records of telephone conversations, or equivalent, with which the Commission services kindly requested the cabinet of the President
to arrange that the letter Ares(2013)2952891 - 30/08/2013 be drawn up and signed.

2. Any annexes and appendices to the documents under (1) above.

3. The preparatory documents (including correspondence), if any, exchanged between the Legal Services, the Secretariat-General, and DG CNECT about the letter Ares(2013)2952891 - 30/08/2013.

4. DG CNECT documents about the presentation of the DG INFSO risk-based audits on 18/2/2011 to the Ombudsman. Such documents might be emails exchanged with the Ombudsman about the proposal of DG INFSO to organise the presentation, organisational aspects (e.g.
a request to audit record the presentation), note to file from telephone conversations, the Ombudsman’s acceptance of the proposal for a presentation, and so on.

5. Documents drawn up by DG INFSO official who made the
presentation about the risk-based audits on 18/2/2011 and held by the Appointing Authority, in which the official objects to the disclosure by the Ombudsman of the presentation’s audio recording.

6. Documents drawn up by the Appointing Authority reflecting, commenting, approving, or equivalent, the objections under (5) above.

7. Documents about the audio/video recording of an official presentation by a Commission official before another Institution, or Union body, or a public event being construed as containing personal data of the official. It is important to note that the presentation in question is part of discharging official duties.

8. Documents informing the President, his cabinet, or any other Member of the Commission – including their cabinets- about the infringements of Regulation No 45/2001 that the external financial audits of the Research DGs have invariably entailed.

V. NOTIFICATION TO INTERESTED THIRD PARTIES

Due to the extreme seriousness of the underlying matters, the applicant intends to notify this application and subsequently exchanged documents about it to interested third parties.

Any such notification will also be communicated to the Commission services via asktheeu.org to ensure full visibility according to the objectives pursued by asktheeu.org.

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

Yours faithfully,

Zois Zervos

Dear Secretariat General (SG),

Referring to GestDem 2013/5434 registered on 6/11/2013, this is a kind reminder that according to the public records of asktheeu.org the Secretariat-General has neither provided the initial repose nor has it extended the time-limit.

Yours faithfully,

Zois Zervos

Dear Secretariat General (SG),

This is a confirmatory application pursuant to article 7(2) of Regulation 1049/2001 for GestDem 2013/5434, Ares(2013)3673943 - 09/12/2013.

I. OVERALL ASSESSMENT OF THE DG CNECT INITIAL RESPONSE

According to DG CNECT, the President of the European Commission drew up and signed the letter of 30/8/2013 spontaneously, Ares(2013)2952891 - 30/08/2013, http://www.asktheeu.org/en/request/583/r.... The President (or his cabinet) also redacted the DG INFSO-O2 presentation "Ex-post controls" dated 18/2/2011 as some sort of an intellectual exercise in guessing what the Commission services would have done.

In other words, towards the end of August 2013 the President came up with a fairy-tale about an application submitted to the Ombudsman under Regulation 1049/2001 concerning a presentation DG INFSO officials gave on 18/2/2011 to the Ombudsman services about the DG INFSO risk-based audits. Among other, the fairy-tale talks about: (i) a confirmatory application submitted to Secretariat-General in the end of July 2013 that had vanished for more than a month, (ii) how an audio recording held by the Ombudsman was not in the possession of the Commission services, (iii) reliance on several exceptions of article 4 of Regulation 1049/2001 to refuse total access to the presentation. To make the fairy-tale more interesting, the President instructed his cabinet to fetch a copy of the DG INFSO-O2 presentation, and then the President went on to redact from the presentation several parts. When the President was satisfied with the story, he wrote down the fairy-tale and subsequently sent it to the Ombudsman, together with the redacted presentation. Who knows, perhaps the President wanted the Ombudsman to appreciate his literally skills.

There can be no doubt that the DG CNECT version of the 'story' is entirely divorced from reality. The President's cabinet was fully informed by the Commission services, and was provided with a redacted version of the presentation that DG CNECT had disclosed. This cannot have taken place orally only.

II. FURTHER CONSIDERATIONS

DG CNECT could have search for documents in its own document management systems and perhaps to some - but not necessarily all - document management systems of other Directorates-General. It would be impossible to have been able to search for documents stored at the President's office. The inescapable conclusion is that it is likely that there are documents held either by the President's cabinet or by Secretariat-General falling under the scope this application. The reasoning of this paragraph applies in particular to requests #1 and #2.

Turning to requests #7 and #8, the former concerns all Directorates-General and the latter also DG RTD, DG MOVE and DG ENER. In order to provide a response applicable for all Directorates-General, DG CNECT ought to have consulted every single Directorate-General, something that it is highly unlikely that DG CNECT did.

In conclusion, the undersigned respectfully suggests that DG CNECT did not carry out a thorough search for documents.

III. CONFIRMATORY APPLICATION

This application concerns all eight requests.

No matter how trivial DG CNECT or the Secretariat-General may have regarded this application, the crux of the issue is why the Commission services had caused the President to misrepresent elementary facts in the letter of 30 August 2013. The obvious answer is that DG CNECT did so in order to prevent further disclosures about the DG INFSO risk-based audits.

Consequently, there is an overriding public interest to scrutinise the roles and actions of all those who have manifestly misled the President of the European Commission in matter of the letter Ares(2013)3673943 - 09/12/2013.

Yours faithfully,

Zois Zervos