Dear Secretariat General (SG),

Thank you for information and documents in pdf format provided under this link
http://www.asktheeu.org/en/request/reque...

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting further documents following your reply of 28.05.2013 which contain the information mentioned below.

As European Commission replies were placed in a different section, for a better understanding of these replies I assembled it in the following structure:

- Reiteration of my question of 23 April 2013

- Inserting your reply of 28.05.2013

- My request for clarifications of 28.05.2013
Please find below the 6 parts, combined as mentioned above. It is easier to understand. Please also note my Requests for clarifications inserted under each of the 6 parts.

PART 1.

QUESTION 1 of 23 April 2013.

From the link you provided to me at the end of your letter I understand that the European Commission took already its decision to extend the FRA Director`s term of office so the Evaluation Report is finalized and necessarily was used for the well informed decision taken by European Commission. I request access to this Evaluation Report used by the EC Hierarchy mentioned in the link provided to me and accessible easier form here:
http://ec.europa.eu/transparency/regdoc/... (Minutes of the 2041st meeting of the Commission held in Brussels
(Berlaymont) on Wednesday 10 April 2013)

Paragraph 7.2 of the Minutes read as follows:

"Having noted the procedure followed as set out in point 2 of PERS(2013) 64/2, the Commission, on a proposal from Mr ŠEFČOVIČ, in agreement with the PRESIDENT and Ms REDING, decided to extend for three years with effect from 1 June 2013 the term of office of Mr Morten KJAERUM as Executive Director of the European Union Agency
for Fundamental Rights, and asked Ms REDING to communicate this decision to the Agency’s management board. This decision would take effect immediately".

My understanding is that in accordance to Article 12(6) (c) of Council Regulation 168/2007 the final decision is to be taken by Management Board of FRA and only then can take effect. I request information if the term of office of FRA Director was already extended with immediate effect by Mr BARROSO, Ms REDING and Mr Mr ŠEFČOVIČ (see above), or that paragraph is to be understand as Proposal or Endorsement by Mr BARROSO, Ms REDING and Mr Mr
ŠEFČOVIČ?

This is not fully understandable and clear taking view that in your letter is written that the FRA Management Board meeting for this purpose will take place on 22-24 May 2013.Therefore I request information if the par 7.2 of the Minutes is a DECISION or a PROPOSAL/recommendation?

DG JUSTICE REPLY TO QUESTION 1 of 23 April 2013.

“The Commission's decision of 10 April to propose for the extension of the term of office of the Director of FRA for three years took into account the evaluation report that assessed in particular:
- the performance of the Director ;
- the Agencies' duties and requirements in the coming year (see Annex I)

We will reply separately to your request to receive a copy of the Career Development Report of the Director FRA.

As regards the minutes of the Commission meeting on 10 April, please be informed that the French version (see Annex II) has authority over the English translation which you have referred to. The French original text reads as follows:

"7.2. DG JUSTICE – PROLONGATION DU MANDAT DU DIRECTEUR EXECUTIF DE L'AGENCE DES DROITS FONDAMENTAUX DE L'UNION EUROPEENNE

Ayant pris acte de la procédure suivie telle que reprise au point 2 du document PERS(2013) 64/2, la Commission, sur proposition de M. ŠEFČOVIČ, en accord avec M. le PRESIDENT et Mme REDING, décide de proposer la prolongation, pour une durée de trois ans à compter du 1er juin 2013, du mandat de M. Morten KJAERUM au poste de directeur exécutif de l'Agence des droits fondamentaux de l'Union européenne, et charge Mme REDING de communiquer cette proposition au conseil d'administration de l'agence.

Cette décision prend effet immédiatement."

MY REQUEST FOR CLARIFICATION of 28.05.2012

If there is available an amended/corrected version of English minutes of the Commission meeting on 10 April, I request access to it.

PART 2

QUESTION 2 of 23 April 2013.

In addition I request relevant information and documents related to point 3 of your letter JUST/Cl/JD/vf/l 109542s stored in asktheeu website.

a) I particularly refer to the alleged misbehavior and conflict of interest raised in Judgment F-58/10
http://curia.europa.eu/juris/document/do...
in relation to FRA Director and the Investigator appointed by the FRA Director to conduct the respective administrative inquiry at FRA (see par. 77, 52, 57, 63, 64) and the persons identified as Mr M and Mr A in that Judgment (if the respective Judgment was part of evaluation process and if it was considered for the Evaluation
Report drafted by EC).

b) I also refer to Parliamentary Question E-002422/2012 accessible from here :
http://www.europarl.europa.eu/sides/getD...
and request information if European Commission scrutinized the mentioned alleged fraud happened under the tenure of the current Director of FRA when he served as Director at Danish Institute for Human Rights / IMR and whose mandate was extended or is to be extended (i.e. if this aspect was considered for the EC Evaluation
Report). I request information and relevant documents if there was a checking by specialized EU bodies of the accounts of Danish Institute for Human Rights and of FRA and which the outcome was.

c) From the Judgment F-58/10 I understand that Danish Institute for Human Rights (IMR in the Judgment) is a quite big contractor of FRA (only one contract is of 500 000 Euro - see p. 61). From the website asktheeu I found out that European Commission awarded several grants to Danish Institute for Human Rights amounted to
millions of Euro, as follows:
- Grant ref. JUST/2009/FRAC/AG/1279 - 994.775,16 EUR
- Grant ref. JUST/2012/PROG/AG/3720 - 117.966,25 EUR
- Grant ref. JUST/2011/PROG/AG/1909 - 221.813,66 EUR
- Grant ref. JUST/2007/FRAC/AG/0019/1 - 425.019,00 EUR
- Grant ref. JUST/2008/FRAC/AG/1226 - 498.915,32 EUR
- Grant ref. JUST/2010/PROG/AG/534/D4 - 239.999,66 EUR
In EC FTS system there are some more grants awarded to IMR by other departments of European Commission than DG Justice.

I request relevant information and documents showing if the alleged fraud in accounts of IMR was settled and the grants and contracts awarded to IMR were concluded and awarded in accordance to provision of Regulation (EU, Euratom) No 966/2012 and Commission Delegated Regulation C(2012)7507, regulations which require that
all bidders provide accurate financial documents in order to be admitted in competition for awarding grants (particularly I request information if this aspect was taken into account for the Evaluation Report on FRA director performed by EC and related decision to extend his term of office).

DG JUSTICE REPLY TO QUESTION 2 of 23 April 2013.

“Point 2

Sub-point a): The case F-58/10 of the European Union Civil Service Tribunal concerns a conflict between an employee and FRA. In accordance with Article 15 par. 4 c) of the Regulation, the Director is responsible for all staff matters. Accordingly, the Commission did not take a position on this case.
Sub-points b) and c): Your application is currently being handled. An extended time limit is needed as your application requires consulting different services. Therefore, we have to extend the time limit with 15 working days in accordance with Article 7(3) of Regulation (EC) N° 1049/2001 regarding public access to documents. The new time limit expires on 18 June.

MY REQUEST FOR CLARIFICATION of 28.05.2012

Please refer Sub-point a) to European Commission representatives in FRA Management Board. They must have further details.
As to Sub-points b) and c):
I noticed in asktheeu.org website that EC do not require financial documents from bidders when awarding grants.
In this link http://www.asktheeu.org/en/request/grant... is written that “DG Justice has received financial documents from DIHR only for grant ref. JUST/2009/FRAC/AG/1279”.
I request relevant information if for the grant awarded by EC in 2012 to IMR/DIHR (117.966,25 EUR) relevant financial documents were requested and if not, why.
Also I request information if EC is aware about the restrictions applied in 2012 to IMR/DIHR by Denmark authorities in respect of accessing grants from Danish Public Budget (due to financial irregularities discovered in IMR / DIHR accounts). EU Financial regulations require that bidders provide updated balance sheet & financial docs. Was this the case for the grant awarded in 2012 to IMR/DIHR or the forms provided in 2009 were used for the purposes of grant awarding afferent to 2012? Did IMR/DIHR provide corrected forms containing the losses mentioned in the Internet (over 3 200 000 euro posted in inexistent projects)?

PARTS 3 & 4

QUESTION 3 of 23 April 2013.

“I also request relevant information and documents related to misbehavior and conflict of interest mentioned in European Parliament Budgetary Discharge Report P7_TA-PROV(2013)0162 under this link http://www.europarl.europa.eu/document/a...
at par. 5, 6, 7, 8, and relevant information if European Commission considered it for the Evaluation Report on FRA Director extension of term of office and implicitly for the Final Decision taken by Mr BARROSO, Ms REDING and Mr Mr ŠEFČOVIČ.

QUESTION 4 of 23 April 2013.

I request information on how many cases were identified at FRA by European Commission with the occasion of drafting its Evaluation Report for the extension mandate of FRA Director? (I refer to cases
before the EU Courts, EU Ombudsman and other EU institutions, if applicable, and to eventually internally ongoing cases at FRA level).

Additionally I request information as to why these cases appear at FRA and if European Commission analyzed them when took its decision to extend the mandate of the FRA Director. I ask these information in the light of article 15 (1) second indent of Council Regulation 168/2007 (i.e.director`s skills to manage its staff and conflict resolution). Who generate these cases at FRA and why?

In the Judgment F-58/10 is mentioned that at FRA was identified an "intense atmosphere of fear". I request relevant information on who is responsible of that "intense atmosphere of fear" and if the fear come already to an end.

This particular request is to be transmitted to the relevant hierarchy in charge with the Fundamental Rights in the EU. Is quite strange and of great public concern that at an EU Agency for Fundamental Rights was identified an "intense atmosphere of fear".
Therefore I request to access relevant documents and information. Who created the fear? Who maintained it?

DG JUSTICE REPLY TO QUESTIONS 3 AND 4

“Points 3 & 4

The Commission's decision to propose the extension of the term of office of the Director of FRA for three years took into account the evaluation report (see above)”.

MY REQUEST FOR CLARIFICATION of 28.05.2012

I request relevant information if European Commission was aware about the situation at FRA (several cases before different institutions and court).
I also request to access the full EC Evaluation Report. In annex there is only an Annex with no relevant information. Additionally I request access to the Appraisal Report of FRA Director performance and information on responsible persons for drafting, endorsement and approval.
I reiterate the question 4 and request more detailed replies. The invoked "intense atmosphere of fear" in the Judgment F-58/10 is very serious and of great concern for modern times as we live now and I would like to have details. The representatives of European Commission in FRA management Board could have more details. If necessary, please refer the question to them.

PART 5.

QUESTION 5 of 23 April 2013.

Finally, I request relevant information and access to the related reports on the two particular cases mentioned in point 8 of European Parliament Budgetary Discharge Report P7_TA-PROV(2013)0162
(i.e. Report of OLAF and Report of EU Ombudsman). If this part of my request is not within your competence I kindly ask to transmit it to competent authorities, possibility envisaged in the Code of Good Administrative Behavior applicable to EU staff and EU hierarchy.

DG JUSTICE REPLY TO QUESTION 5

Point 5

Your application is currently being handled. An extended time limit is needed as your application requires consulting different services. Therefore, we have to extend the time limit with 15 working days in accordance with Article 7(3) of Regulation (EC) N° 1049/2001 regarding public access to documents. The new time limit expires on 18 June.

The Commission is not in a position to respond to your request that concerns a case opened by the European Ombudsman against FRA.

MY REQUEST FOR CLARIFICATION of 28.05.2012
I take note about the new time limit which expires on 18 JUNE 2013.

PART 6.

QUESTION 6 of 23 April 2013.

The letter you kindly sent me via asktheeu website is signed by Ms Salla Saastamoinen. I see in the FRA website
http://fra.europa.eu/en/about-fra/struct... that Ms Salla Saastamoinen is also member of FRA Management Board.

As there is no possibility to identify in FRA website via CV or Declaration of conflict of interest if Ms Salla Saastamoinen is the same person who signed the letter JUST/Cl/JD/vf/l 109542s stored in asktheu website, assuming that is the same person, I request relevant information if this letter was signed in both qualities of
Ms Salla Saastamoinen : as Head of Unit at European Commission and in the same time as Member of FRA Management Board. I would appreciate relevant information as to the potential conflict of
interest, because the EU Agencies are independent EU bodies.

DG JUSTICE REPLY TO QUESTION 6

Point 6

Ms Salla Saastamoinen has been appointed as one of the two Commission representatives to the Management Board of the FRA in accordance with Commission decision C(2010) 5633 final (see annex III and annex IV).

The reply of 3 May was sent to you as Head of the Fundamental rights and rights of the child unit of the Direction General for Justice of the European Commission, as indicated in the letterhead.

MY REQUEST FOR CLARIFICATION of 28.05.2012

On this question I have only one request for clarification related to a potential conflict of interest.
Ms Salla Saastamoinen, having two roles in the same time (one at FRA and one at European Commission) and taking view that the FRA Director`s behavior (past at DIHR and current at FRA) is not fully clarified neither for European Parliament either for EU public, there is a legitimate concern as to the objectivity and impartiality of Ms Salla Saastamoinen and the other MB members, when they drafted and endorsed the Appraisal Report on FRA Director performance, conduct and abilities.
As you can see in this link http://www.europarl.europa.eu/document/a... the European Parliament has concerns in relation to conflict of interest at FRA.
The EP Question 28 reads:
“Can the Agency confirm or refute allegations that it had awarded contracts to NGOs which are led by the members of the Management Board of the Agency? If there are such cases, have they been examined from the perspective of the Agency's Financial Rules and/or any other applicable rules as regards the possible conflict of interest?”
In the reply given to EP by FRA there is no refuting of allegations. This is the context I request this additional clarifications.
I request information and related documents in relation to EP Question 28. I rephrase it accordingly:
a) Can the European Commission confirm or refute the allegations that FRA awarded contracts to NGOs which are led by the members of the Management Board of the Agency? Was this scrutinized with the occasion of extension of Director Mandate for further 3 years by Management Board at the Recommendation of European Commission?
b) If there are such cases, have they been examined by European Commission representatives in FRA MB from the perspective of the Agency's Financial Rules and EU Financial Regulation (old FR and new FR adopted in 2012) as regards the possible conflict of interest?”

Yours faithfully,

Kurt Weiss

Dear Ms Salla Saastamoinen,

I take note about your reply. Unfortunately I am not satisfied with its content, therefore the following should be considered as a REQUEST FOR INTERNAL REVIEW.

Details on Request for Review:

In point b) you wrote that:

“b) The Commission has not carried out any investigation of the alleged fraud concerning the use of national subsidies by the Danish Institute for Human Rights (DHIR). As for the accounts of FRA, these are subject to an annual verification by the European Court of Auditors”.

You are a member of FRA Management Board. Hereby I am writing to you in this quality of yours: as representative of European Commission appointed in FRA Governing Board to supervise the activity of FRA, including activity of FRA Director.

Would be possible to provide me relevant information if such Control / Audit by European Court of Auditors took place at FRA in respect of the alleged fraud concerning DIHR accounts? Would be possible to provide a copy of that Report drafted by Court of Auditors?

In point c) you wrote:

“c) Please note that the grants awarded to DIHR (listed in your enquiry) were awarded in accordance with all the applicable EU regulations. In accordance with the applicable provisions of the Financial Regulation, public bodies applying for grants are exempt from the verification of financial capacity. This is reflected in the relevant provisions of calls for proposals, more specifically in the fact that financial documentation is normally not requested from public bodies”.

Respectfully, I would like to raise your attention that your reply under c) includes an incomplete quoting / reference, which changes the sense and intention of legislator. Please allow me to clarify this aspect for you.
For your facility I refer to this EC link ftp://ftp.cordis.europa.eu/pub/fp7/docs/financialguide_en.pdf where you will see that public bodies are those like Universities, Ministries, etc.

For the sake of your argument (i.e. that DIHR is a public body and therefore exempted from relevant scrutiny of financial documents), let me quote in a complete manner the relevant article of EU Financial Regulation.

According to article 131 p. 3, third indent of the EU Financial Regulation:

“The verification of financial capacity shall not apply to natural persons in receipt of scholarships, to natural persons most in need and in receipt of direct support, to public bodies or international organisations. The authorising officer responsible may, depending on a risk assessment, waive the obligation to verify the operational capacity of public bodies or international organisations”.

Even we assume that DIHR is a public body, in order to understand your quite easy approach as to the grave facts in question (i.e. hiding losses of 3.2 million kroners in inexistent projects) I should stress that there should be periodical audits by Independent auditors or even verifications by EC. Please refer to relevant EC rules (RAP, former IR).

Did EC comply with those requests? Was there a Risk Assessment performed by EC or by FRA? Because if someone was fully informed and perfectly knows that an institute hides losses in inexistent projects…this Risk Assessment is mandatory.

I request access to that Assessment and to the Audit Report by Independent auditors, like the one cited here http://cphpost.dk/news/national/foreign-... and here http://um.dk/en/~/media/UM/English-site/... .

Please be kindly reminded that according to article 131 p. 4 of the EU Financial Regulation:

“ Article 106(1) and Articles 107, 108 and 109 shall also apply to grant applicants. Applicants shall certify that they are not in one of the situations referred to in those Articles”.

Then you replied to my REQUEST FOR CLARIFICATIONS OF 28.05.2013 as follows:
”a. As indicated previously, the Commission has no legal grounds for intervening in a dispute between a staff member and an autonomous Agency. The competent authority to reply to complaints is the Appointing authority of the Agency, in this cases the Director or the Management Board, depending on the circumstances (see respectively Article 12 par. 6 e) and Article 15 par. 4 c) of the Council Regulation (n° 167/2007) establishing a European Union Agency for
Fundamental Rights)”.

As visible in FRA website, you and your EC colleagues are full and alternate members of FRA management Board. Were you informed about the situation at FRA? If yes, what did you do? If not and you are informed only now, how do you intend to address the situation? A simple justification of the reprehensible facts raises some legitimate questions.

On point b) of my request for clarification you replied:

“ b. Concerning your request for information on whether financial documentation was required from DIHR for the purpose of applying for grant ref. JUST/2012/PROG/AG/3720 - 117.966,25 EUR, please note that this was not the case as DIHR is classified as a public body and is therefore exempt from the obligation to provide such financial documentation (see section “financial capacity” on page 11 of the relevant call for proposals available here [1]http://ec.europa.eu/justice/newsroom/fil...

As spotted above, EC / FRA has obligation to ask such documents if the circumstances require this. And the circumstances at stake required such Risk Assessment because EC is obliged by EU Financial rules NOT to tolerate that somebody is hiding losses in inexistent projects, and then comes to EC / FRA saying that everything is in order with their financial situation and win contracts of millions of Euro….paid finally by EU taxpayers. Just see here some more facts:
http://cphpost.dk/news/international/aid...

As member of FRA board you probaly know directly and also from OJEU publications that at FRA was about procurement contracts concluded with DIHR, not grant agreements like at EC.

Did FRA requested financial documents from DIHR? What those financial documents revealed? Where were posted the losses of 3.2 million kroner? This question is for you and your EC colleagues, as members of FRA MB.

You continued:

“However, within the framework of the relevant application form, DIHR declared to the Commission that it was not (at the moment of applying for the grant JUST/2012/PROG/AG/3720) in any of the situations that would exclude it from receiving EU funding, namely that:

* The applicant is not bankrupt or being wound up, is not having its affairs administered by the courts, has not entered into an arrangement with creditors or suspended business activities, is not the subject of proceedings concerning those matters, and is not in any analogous situation arising from a similar procedure provided for in national legislation or regulations";

Please be advised that :
as to the “suspended business activities ...” please be recalled of the press article and Statements by Danish Authorities. There were cut funds and suspension`s measures taken. See above links from Danish press and website of Ministry of Foreign affairs.

Danish authorities cut indeed the funds http://cphpost.dk/news/national/foreign-...

Similarly as above, you continued by inserting what DIHR declared and apparently nobody from FRA and EC checked.

"* The applicant is not guilty of grave professional misconduct proven by any means which the Commission can justify”;

The EC was fully aware that DIHR hidden the losses in inexistent projects. The information was public. This could be assimilated with potential” grave professional misconduct”

"* The applicant is not subject to a conflict of interest”;

There was indeed a conflict of interest in respect of Directors previous activity at DIHR. Moreover the respective facts happened under his tenure.

"* The applicant is not guilty of misrepresentation in supplying the information required by the Commission or of failing to supply this information".

Who checked & asked ?

In point c) below you wrote that EC is currently aware of the situation:

“ c. Regarding the Commission's awareness of the restriction applied in 2012 to IMR/DIHR by Denmark authorities in respect of accessing grants from Danish Public Budget (due to financial irregularities discovered in IMR / DIHR accounts), please note that the Commission (more specifically DG JUST, the service managing the grants awarded to DIHR listed in your enquiry) is currently aware of the situation, which had also been signaled to the Commission via the previous requests for access to documents (published on the asktheeu.org website) which you yourself quote in your enquiry”.

Is there any action taken by EC / FRA MB ?

Under PARTS 3 & 4 of my REQUEST FOR CLARIFICATION OF 28.05.2013 you wrote:

“As a holding reply, let me clarify the legal context of your request to access of documents.

The full Commission evaluation report is covered by one of the exceptions provided for in Article 4 (1) (b) of Regulation No 1049/2001 according to which access to documents is to be refused when disclosure would undermine the protection of privacy and integrity of the individual.

The Court of Justice of the EU has ruled in case C-28/08P, Bavarian Lager ^ Case C-28/08 P Commission v Bavarian Lager, judgement of 29/06/2010, OJ C 79 29/03/2008. , that, when a request for public access concerns documents containing personal data, the provisions of Regulation 45/2001 becomes applicable in their entirety, including the provision requiring the recipient of personal data to establish the need for their disclosure and the provision which confers on the data subject the right to object any time, on compelling legitimate grounds relating to his or her particular situation, to the processing of data relating to him or her. In this respect, we would ask you to send us your postal address so that we can inform the data subject that in case of a agreements to grant access to the document you have requested it would not be published on the internet”.

For this part please refer to my reply to FRA and EDPS accessible from here:
http://www.asktheeu.org/en/request/eu_fu... and here http://www.asktheeu.org/en/request/reque...
http://www.asktheeu.org/en/request/reque...
As to the postal address, for the same reasons invoked by you in Bavarian judgment I will orient you for the respective submissions to Organization for Public Integrity. Alternatively I could indicate to your services the postal address. However the scope of this correspondence is to add some value to public integrity so I would prefer that you post those submissions under this website (publicly in a transparent manner – where necessary please make anonymous the name in order to protect the privacy of data subjects / or alleged perpetrators). I and other people wonders: If there is nothing to hide, why to use private channels? Let’s be transparent and show the documents publicly. Transparency is an important principle of the Union.

Finally,would be possible to refer my request on FRA conflict of interest rules and cases to MB of FRA? This is an facile action as you are member of FRA MB. Thank you.

Yours faithfully,

Kurt Weiss