Ref. Ares(2021)1572735 - 02/03/2021
The Director-General
Mr Miroslav SCHLOSSBERG
E-mail:
ask+request-8851-
xxxxxxxx@xxxxxxxx.xxx
By e-mail only
Brussels,
Subject:
Your confirmatory application for public access to documents
Dear Mr Schlossberg,
We refer to your confirmatory application made via AsktheEU by e-mail dated
29 December 2020 and registered in OLAF under reference number Ares(2021)35166
requesting the review of OLAF's position stated in its letter dated 22 December 2020,
concerning your request for public access to documents under Regulation (EC) No
1049/20011.
Your confirmatory application for public access to documents was carefully considered and
a detailed response follows.
1. Scope of your confirmatory application
In your initial application, made by e-mail dated 7 November 2020, Ares(2021)1406402,
you have requested public access to “statistics on received, processed and investigated
frauds for the period 2015 - 2019 (including 2015 and 2019 year)” and by e-mail dated 11
December 2020, Ares(2020)7572893, you informed us that, with regard to irregularities and
frauds related to EU funds, the Croatian Ministry of Finance had referred you to OLAF. You
further explained in your e-mail of 11 December 2020 that you understood that OLAF collects
and stores reports from Croatian authorities in the system named Irregularity Management
System, IMS. You therefore asked for exported data from the IMS in a form allowing their re-
use. You added that you do not require any personal data to be included.
By e-mail of 29 December 2020, Ares(2021)1406186, OLAF provided you with a link to
OLAF reports 2015 – 2019 at
https://ec.europa.eu/anti-fraud/about-us/reports/olaf-
report_en where you could find the information on statistics on received, processed and
investigated frauds for the period 2015 – 2019. In its short message, OLAF has not made a
specific reference to your later plea of 11 December 2020 for data exported from the
Irregularity Management System.
In your confirmatory application, you put forward that the data in the annual reports are
1 OJ 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
in pdf format and you insist to be delivered data from IMS in a format that allows re-use.
2. Assessment of the documents under Regulation (EC) 1049/2001
Having carefully considered your confirmatory application OLAF concludes that it provided
you with the requested information in the form that is available and made accessible to
the public via the link to the OLAF’s annual reports. OLAF regrets to inform you, however,
that your application for access to re-usable data from the Irregularity Management
System (IMS) cannot be granted, as disclosure is prevented by provisions governing the
transmission of the information by Member States to the IMS and by exceptions to the
right of access laid down in Article 4 of Regulation (EC) 1049/2001 based on the following
considerations.
2.1 The Irregularity Management System (IMS)
The Irregularity Management System (IMS) is an IT system, which enables EU countries
and candidate countries to report any irregularities affecting EU funds which they may
detect, and which supports the management and analysis of such irregularities. The
information provided to the system is confidential.
EU law requires reporting in areas where the EU provides financial support. EU countries
must report cases of irregularities in expenditure to the Commission, including suspected
and established fraud.
The IMS enables EU countries and candidate countries to report irregularities related to
expenditure to the Commission. IMS is managed by OLAF. It contains details of fraud and
irregularities in the use of funds managed by the national authorities, such as agricultural
and European Structural and Investment Funds.
The IMS is open to all Commission departments on a need-to-know basis and is used for
the following purposes: analysis and reporting (e.g. the annex to the PIF-Report
https://ec.europa.eu/anti-fraud/about-us/reports/communities-reports_en),
supporting
policy initiatives, supporting OLAF’s case selection process, preparing for audits, deciding
whether to sign off the accounts for previous operational programmes and replying to
questions from the European Parliament.
According to Article 5 of Commission Delegated Regulation 2015/19702 the information
provided under this Regulation is covered by professional confidentiality and may not, in
particular, be disclosed to persons other than those in the Member States or within the
Union's institutions whose duties require that they have access to it, unless the Member
State providing it has given its express consent. According to Article 3 of Commission
Implementing Regulation (EU) 2015/19743 the information referred to in Articles 3 and 4
of Delegated Regulation (EU) 2015/1970 shall be sent by electronic means, using the
Irregularity Management System, established by the Commission.
2 Commission Delegated Regulation (EU) 2015/1970 of 8 July 2015 supplementing Regulation (EU) No
1303/2013 of the European Parliament and of the Council with specific provisions on the reporting of
irregularities concerning the European Regional Development Fund, the European Social Fund, the Cohesion
Fund, and the European Maritime and Fisheries Fund, OJ L 293, 10.11.2015, p. 1–5.
3 Commission Implementing Regulation (EU) 2015/1974 of 8 July 2015 setting out the frequency and the format
of the reporting of irregularities concerning the European Regional Development Fund, the European Social Fund,
the Cohesion Fund and the European Maritime and Fisheries Fund, under Regulation (EU) No 1303/2013 of the
European Parliament and of the Council, OJ L 293, 10.11.2015, p. 20–22.
2
There are similar provisions in other sectoral legislation.4
According to case-law5 the rules on access to documents, particularly those set out in
Article 4 of Regulation No 1049/2001, cannot, where the documents covered by the
application fall within a particular area of EU law, be applied and interpreted without
taking account of the specific rules governing the transmission and use of the data
contained in those documents, which are laid down in the above-mentioned Regulations.
In principle those provisions preclude certain forms of transmission or use of data
communicated by the Member States unless they have given their express consent. Whilst
it is clear from Article 2(1) of Regulation No 1049/2001 that the documents of the
institutions, including those originating from the Member States, can in principle be made
public, Article 4(5) of that regulation provides that a Member State may request that a
document originating from that Member State not be disclosed without its prior
agreement.
Consequently, the above-invoked provisions on provision of data on irregularities by
Member States not only lay down that, where a Member State makes a specific request to
that effect, a document originating from that Member State cannot subsequently be
disclosed without its prior agreement, as does Article 4(5) of Regulation No 1049/2001,
but they also set prior and express consent of that Member State as an unqualified
condition for certain forms of transmission and use of data communicated by that Member
State.6
There is therefore prohibition on the transmission or use of data at issue transmitted by a
Member State for other purposes than foreseen by the above-analysed provisions without
consent of the Member State.
2.2. Protection of the purpose of investigations (Article 4(2) third indent)
The documents containing data that you seek to obtain contain information gathered using
OLAF's investigative powers. They are, therefore, also covered by the exception under
Article 4(2) third indent of Regulation 1049/2001, which stipulates that the institutions shall
4 See for example:
Commission Delegated Regulation (EU) 2015/1971 of 8 July 2015 supplementing Regulation (EU) No 1306/2013
of the European Parliament and of the Council with specific provisions on the reporting of irregularities
concerning the European Agricultural Guarantee Fund and the European Agricultural Fund for Rural Development
and repealing Commission Regulation (EC) No 1848/2006, OJ L 293, 10.11.2015, p. 6–10;
Commission Implementing Regulation (EU) 2015/1975 of 8 July 2015 setting out the frequency and the format
of the reporting of irregularities concerning the European Agricultural Guarantee Fund and the European
Agricultural Fund for Rural Development, under Regulation (EU) No 1306/2013 of the European Parliament and
of the Council, OJ L 293, 10.11.2015, p. 23–25
Commission Delegated Regulation (EU) 2015/1972 of 8 July 2015 supplementing Regulation (EU) No 223/2014
of the European Parliament and of the Council with specific provisions on the reporting of irregularities
concerning the Fund for European Aid to the Most Deprived, OJ L 293, 10.11.2015, p. 11–14;
Commission Implementing Regulation (EU) 2015/1976 of 8 July 2015 setting out the frequency and the format
of the reporting of irregularities concerning the Fund for European Aid to the Most Deprived, under Regulation
(EU) No 223/2014 of the European Parliament and of the Council, OJ L 293, 10.11.2015, p. 26–28
Commission Delegated Regulation (EU) 2015/1973 of 8 July 2015 supplementing Regulation (EU) No 514/2014
of the European Parliament and of the Council with specific provisions on the reporting of irregularities
concerning the Asylum, Migration and Integration Fund and the instrument for financial support for police
cooperation, preventing and combating crime, and crisis management, OJ L 293, 10.11.2015, p. 15–19.
Commission Implementing Regulation (EU) 2015/1977 of 8 July 2015 setting out the frequency and the format
of the reporting of irregularities concerning the Asylum, Migration and Integration Fund and the instrument for
financial support for police cooperation, preventing and combating crime, and crisis management, under
Regulation (EU) No 514/2014 of the European Parliament and of the Council, OJ L 293, 10.11.2015, p. 29–31
5 Judgment of the General Court of 3 May 2018, Malta v Commission, T-653/16, EU:T:2018:241, paragraph 141.
6 Judgment of the General Court of 3 May 2018, Malta v Commission, T-653/16, cited above, paragraphs 144 –
146.
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refuse access to a document where disclosure would undermine the protection of the
purpose of inspections, investigations and audits.
The General Court recognised7 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, 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
gathered8. In the case at hand, Regulation 883/2013, governs OLAF's administrative
activity and provides for the obligation of confidentiality with regard to all information
gathered during investigations.
OLAF is legally bound, pursuant to Article 339 of the Treaty on the Functioning of the
European Union, Article 10 of Regulation (EU, Euratom) No 883/2013, and Article 17 of
the Staff Regulations, to treat the information it obtains during an investigation as
confidential and subject to professional secrecy.
Moreover, the following provisions of Regulation 883/2013 regulate and restrict the use of
information in OLAF investigation files, before, during and after an OLAF investigation:
Article 4 (internal investigations), 5 (opening of investigations), 6 (access to information
in database prior to the opening of an investigation), 7 (investigations procedure), 8 (Duty
to inform OLAF), 9 (procedural guarantees), Article 10 (confidentiality and data
protection); 11 (investigation report and action to be taken following investigations), 12
(Exchange of information between OLAF and the competent authorities of Member
States), 13 (cooperation between OLAF and Eurojust and Europol), 14 (cooperation with
third countries and international organisations), 15 (Supervisory Committee) and 16
(exchange of views with the institutions), 17 (Director-General).
In view of that regulatory context, the Court held that allowing public access to OLAF
investigation documents would be particularly detrimental to OLAF’s ability to fulfil its
mission of fight against fraud in the public interest. The disclosure of the documents
concerned would seriously affect the decision-making process of OLAF, as it would
seriously jeopardise the full independence of future OLAF investigations and their
objectives by revealing OLAF’s strategy and working methods and by reducing OLAF’s
power to make independent assessments and consult the Commission services or other
EU institutions about very sensitive issues. It could also discourage individuals to send
information concerning possible fraud thus depriving OLAF of useful information to initiate
investigations aiming at protecting the financial interests of the Union. They must be
reassured that their statements will be kept confidential otherwise, they might be inclined
to censor the information they give or to hold back sensitive information.9
In view of the foregoing, the documents in OLAF's investigation files fall under a general
presumption of non-accessibility as documents containing information collected during an
OLAF investigation and subject to professional secrecy. In accordance with the case law,
that presumption applies in full regardless of whether the request for access to documents
7 See judgment of the General Court of 26 April 2016,
Strack v
Commission, T-221/08, EU:T:2016:242,
paragraphs 150 to 162.
8 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.
9 Judgment in
Agrofert Holding v Commission, cited above EU:C:2012:394, paragraph 66.
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concerns an on-going or closed investigation.10 In addition, the general presumption also
entails that the documents covered by that presumption are not subject to the obligation
to assess whether a partial access should be granted to them pursuant to Article 4(6) of
Regulation No 1049/2001.11
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.12
2.3 Protection of commercial interests (Article 4(2) first indent)
In addition, Article 4(2) first indent of Regulation 1049/2001 provides that the institutions
shall refuse access to a document where disclosure would undermine the protection of
commercial interests of a natural or legal person, including intellectual property.
OLAF takes the view that disclosure of the requested documents would allow the public to
gather important information of business relevance, which would be harmful for the
entities which data they contain. Disclosure of such data could also give rise to potential
misrepresentation of their activities and such an occurrence would have adverse effects on
their reputation and, thereby, harm their commercial interests.
3. Partial access
OLAF has also examined the possibility of granting partial access to the requested
documents in accordance with Article 4(6) of Regulation (EC) No 1049/2001.
As stated above, partial access is not possible, given that the information the documents
contain falls entirely under general presumption of applicability of Article 4(2), third
indent and Article 4(3) of Regulation 1049/2001 in the context of inspections and audits.
4. 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 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 considers that the arguments that you have raised in your confirmatory application
have not established the existence of an overriding public interest in disclosure.
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 by the Office, such as sources of information, content of case files
and reputation of natural persons and entities, an application under Regulation (EC) No
1049/2001 would have to contain clear elements to indicate the existence of an
overriding public interest to justify putting internal OLAF documents and other
information from the investigation file into the public domain. OLAF considers that there
are no sufficient elements that would show the existence of an overriding public interest
in disclosing the requested documents.
10 Judgment of the General Court of 26 April 2016,
Strack v
Commission, T-221/08, cited above, paragraph 162.
11 Ibid., paragraph 168.
12 Ibid., paragraph 91.
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In addition, in accordance with the sectoral legislation mentioned under point 2.1
governing transmission of data by Member States to the Irregularity Management System,
access to this database is not public and restricted only to authorised competent
authorities.
5. Means of redress
I draw your attention to the possible means of redress available against this decision.
You may either bring proceedings before the Court of Justice of the European Union or
file a complaint with the European Ombudsman under the conditions specified
respectively in Articles 263 and 228 of the Treaty on the Functioning of the European
Union.
Your attention is drawn to the privacy statement below.
Yours sincerely,
Ville ITÄLÄ
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.
The retention period for public access to documents which do not concern OLAF investigations is a maximum of
10 years.
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-
xxxxxxxxxxxxxxx@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.
Electronically signed on 01/03/2021 10:44 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482
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