Ref. Ares(2021)249350 - 12/01/2021
Directorate D: General Affairs
Ms Barbara PELO
The Director
Slotermeerlaan 133
1063 Amsterdam
The Netherlands
E-mail:
ask+request-8796-
xxxxxxxx@xxxxxxxx.xxx
Via e-mail
Brussels,
Subject:
Your application for public access to documents,
Ares(2020)7015271, GestDem 2020/7154
Dear Ms Pelo,
We refer to your e-mail of 19 November 2020 addressed to the Office for the
Administration and Payment of Individual Entitlements of the European Commission, re-
attributed to OLAF for replying, registered on 23 November 2020 under reference
Ares(2020)7015271, GestDem 2020/7154.
In your message, you first pointed to the decision of the European Ombudsman
1061/2019/FP, issued following your complaint concerning refusal of public access to
documents containing mission costs of Director-General and Directors of OLAF. You
invoked that the European Ombudsman suggested that OLAF takes steps to review its
policy and consider implementing more transparent approach in relation to travel
expenses, which are not incurred in the course of investigatory activities. In particular,
consideration should be given to regular proactive disclosure of the Director-General’s
expenses.
You, therefore, requested under the right of access to documents in the EU Treaties, as
developed in Regulation 1049/2001, access to the exhaustive lists travel expenses of OLAF
Directors-General, for the period 1 January 2015 until 19 November 2020.
In particular you asked for documents that contain, for each of the trips, the following
information:
- place of origin and destination, and the amount spent on travel or transportation;
- exact dates and duration of the trip;
- amount spent on accommodation;
- amount spent on subsistence;
- other information, such as possible miscellaneous costs.
If the travel was by air taxi and a team of people were travelling, you also asked for
OLAF Rue Joseph II, 30 B-1049 Brussels (Belgium) Tel: +32 (0)2 299 11 11 Web: http://ec.europa.eu/anti_fraud
documents with details on other travellers, at minimum their names and job titles.
You further remarked that you seek only for name and surname of the relevant persons,
something that, as you say, is already in the public domain. You do not seek for bank
accounts, office addresses, signatures or telephone numbers.
Taking into account the information you requested, we consider your request as an
application for access to documents under Regulation (EC) No 1049/20011 regarding public
access to European Parliament, Council and Commission documents.
1. Preliminary remarks
We note that you have requested partly the same documents as in your confirmatory
application of 27 April 2019, OCM(2019)13936, by which you requested public access i.a.
to documents with mission costs of Director-General of OLAF within the period from 1
January 2015 to 31 December 2018. Access to those documents was refused by reply of 4
July 2019, OCM(2019)14976.
Your previous application was subject to the inquiry of the European Ombudsman
1061/2019/FP, in which the European Ombudsman decided that there was no
maladministration on the part of OLAF.
The European Ombudsman suggested that OLAF takes steps to review its policy and
consider implementing a more transparent approach in relation to travel expenses which
are not incurred in the course of investigatory activities. In particular, consideration should
be given to regular proactive disclosure of the Director-General’s expenses, in line with the
practice of some EU institutions and agencies.
We wish to inform you that, after having duly considered that suggestion, OLAF informed
the European Ombudsman that whilst it is true that OLAF is independent insofar as its
investigative function is concerned, the Office remains nevertheless one of the
Commission’s directorates-general from an administrative point of view. The European
Commission has not adopted such a practice as regards its Director Generals and other
staff members. Nonetheless, should the Commission decide in the future to adopt a more
proactive approach to the disclosure of such expenses, OLAF will follow it.
It was also pointed out that, in accordance with Commission decision of 25 November
2014 on the publication of information on meetings held between Directors-General of the
Commission and organisations or self-employed individuals2
,OLAF already makes
information available to the public on meetings held by the Director-General with
organisations or self-employed individuals on issues relating to policy-making and
implementation in the Union, which are not related to investigations. This information,
which is published on OLAF’s website, is easily accessible to the public3.
The reply of OLAF was to the satisfaction of the European Ombudsman.
After careful examination of your application, we concluded that the legal and factual
circumstances justifying the refusal of public access to documents of 4 July 2019,
OCM(2019)14976 have not changed. Therefore, the earlier refusal to grant access remains
justified in the light of the current legal and factual situation.
Consequently, we refer you to the decision of 4 July 2019, OCM(2019)14976. That
1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public
access to European Parliament, Council and Commission documents, OJ L145, 31.05.2001, page 43.
2 OJ L 343, 28.11.2014, p. 19
3 http://ec.europa.eu/transparencyinitiative/meetings/meeting.do?host=e1df1b18-cb0f-47e6-bd6b-
9643b9eb5c5c
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decision concluded that access to the documents you request cannot be granted, based on
the exceptions of Article 4 of Regulation (EC) No 1049/2001.
With regard to documents with mission costs of Director-General of OLAF for the period 1
January 2019 until 19 November 2020, we note that your application concerns the same
type of documents and that the legal or factual circumstances have not changed since the
previous reply by letter of 4 July 2019, OCM(2019)14976.
2. Assessment of the documents and relevant applicable exceptions
Having considered your application, OLAF regrets to inform you that your application cannot
be granted, as the disclosure of the identified documents containing the information
requested is prevented by several exceptions to the right of public access to documents,
laid down in Article 4 of Regulation 1049/20014.
2.1
Protection of the privacy and integrity of the individual
Article 4(1)(b) of Regulation 1049/2001 provides that the EU institutions shall refuse
access to a document where disclosure would undermine the protection of privacy and the
integrity of the individual, which provision must be implemented in accordance with the
relevant EU law on the protection of personal data.5
According to the definition provided for in Article 3(1) of Regulation 2018/17256, personal
data
means any information relating to an identified or identifiable natural person (‘data
subject’); an identifiable natural person is one who can be identified, directly or indirectly,
in particular by reference to an identifier such as a name, an identification number,
location data, an online identifier or to one or more factors specific to the physical,
physiological, genetic, mental, economic, cultural or social identity of that natural person.
The information that you have requested is included in the cost statements relating to the
official assignments (business trips) of the Director-General of OLAF. It is obvious that the
documents requested contain information concerning identified natural person.
Consequently, the information requested, by its very nature, constitutes personal data
within the meaning of the provision quoted above. The fact that data concerning the
person in question are closely linked to public data on that person,
inter alia as they are
listed on the Commission's and OLAF's internet sites, and are, in particular, his name,
does not mean at all that those data can no longer be characterised as 'personal data'
within the meaning of the EU data protection rules.7
Therefore, public disclosure of the above-mentioned personal data, through the release of
the documents (i.e. the cost statements) containing them, or through disclosure of a
general description, would constitute processing (transfer) of personal data within the
meaning of Article 3(3) of Regulation 2018/1725.
4 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public
access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p. 43–48.
5 Judgement of the General Court of 25 September 2018,
Psara et al. v European Parliament, Joined Cases
T-639/15 to T-666/15 and T-94/16, EU:T:2018:602, par. 44.
6 Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection
of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and
agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No
1247/2002/EC, OJ L295, 21.11.2018, page 39.
7 See, to that effect, judgement of the General Court of 25 September 2018,
Psara et al. v European Parliament,
cited above, par. 52; judgement of the Court of 16 July 2015,
ClientEarth and PAN Europe v
EFSA, C-615/13 P,
EU:C:2015:489, par. 31.
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In its judgment in case C-28/08 P,
Bavarian Lager8, the Court of Justice ruled that, when a
request is made for access to documents containing personal data, Regulation 45/2001
(now replaced by Regulation 2018/1725 referred to above) becomes fully applicable.
Article 9(1)(b) of Regulation 2018/1725 provides that personal data shall only be
transmitted to recipients established in the Union other than Union institutions and bodies
if the recipient establishes that it is necessary to have the data transmitted for a specific
purpose in the public interest and the controller, where there is any reason to assume that
the data subject’s legitimate interests might be prejudiced, establishes that it is
proportionate to transmit the personal data for that specific purpose after having
demonstrably weighed the various competing interests.
The processing (transfer) of personal data can occur only if the conditions set out under
Article 9(1)(b) of Regulation 2018/1725 are fulfilled and if the transfer constitutes lawful
processing in accordance with the requirements of Article 5 of that Regulation.
In that context, whoever requests such a transfer must first establish that it is necessary
for a specific purpose in the public interest. If it is demonstrated to be necessary, it is then
for the Institution concerned to determine that there is no reason to assume that that
transfer might prejudice the legitimate interests of the data subject9. Where there is any
reason to assume that the data subject’s legitimate interests might be prejudiced, the
controller of personal data (i.e. the Institution concerned) then establishes whether it is
proportionate to transmit the personal data for that specific purpose, after having
demonstrably weighed the various competing interests.10 In the
Strack case, the Court of
Justice clarified that the Institution does not have to examine itself whether a need for the
transfer of personal data exist11.
In your application you have not put forward any arguments to establish the necessity to
have the data transmitted for a specific purpose in the public interest. Therefore, OLAF
does not have to examine whether there is a reason to assume that the data subjects’
legitimate interests might be prejudiced.
The EU Courts have confirmed that a mere
interest of members of the public in obtaining
certain personal data cannot be equated with a
necessity to obtain the said data in the
meaning of Regulation 45/200112. Furthermore, if the condition of necessity laid down in
Article 8(b) of Regulation 45/2001, which is to be interpreted strictly, is to be fulfilled, it
must be established that the transfer of personal data is the most appropriate means for
attaining the applicant's objective, and that it is proportionate to that objective13. The
requirement for necessity requires from the applicant to show that the transfer of personal
data is the most appropriate of the possible measures for attaining the applicant's
objective and that it is proportionate to that objective, which requires the applicant to
8 Judgement of the Court of Justice of 29 June 2010,
European Commission v The Bavarian Lager Co. Ltd,
C-28/08 P, EU:C:2010:378, par. 59.
9 Ibidem.
10 In the
ClientEarth case, the Court of Justice ruled that “
whoever requests such a transfer must first establish
that it is necessary. If it is demonstrated to be necessary, it is then for the institution concerned to determine
that there is no reason to assume that that transfer might prejudice the legitimate interests of the data subject.
If there is no such reason, the transfer requested must be made, whereas, if there is such a reason, the
institution concerned must weigh the various competing interests in order to decide on the request for access”,
judgement of the Court of 16 July 2015,
ClientEarth and PAN Europe v
EFSA, C-615/13 P, cited above, par. 47.
11 Judgement of the Court of Justice of 2 October 2014,
Strack v Commission, C-127/13 P, EU:C:2014:2250, par.
106.
12 Ibidem, par. 107 and 108.
13 Judgement of the General Court of 15 July 2015,
Dennekamp v European Parliament, T-115/13,
EU:T:2015:497, par. 77.
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provide express and legitimate reasons to that effect.14
It should also be recalled that no automatic priority can be conferred on the objective of
transparency over the right to protection of personal data.15
In this respect, it is observed that the travel costs of Commission staff members, including
OLAF Staff, are regulated by Articles 11 - 13 of Annex VII to the Staff Regulations16 and
are subject to a detailed legal and technical framework. There is careful scrutiny of all
declared mission costs for all staff of the Commission, including the staff of OLAF, at all
levels. It takes place in form of checks of mission orders as well as of declarations of costs
incurred. In addition to internal checks, the costs are also subject to budgetary controls,
and can be subject to audits carried out by the Internal Audit Service and the European
Court of Auditors.
Moreover and importantly, the person whose travel costs you are seeking access to is an
agent of the Commission; he is not considered to be public office holder but exercises
supportive functions allowing the Institution to perform its mission. Even if the travel costs
are incurred in his professional functions, the information requested nevertheless
constitutes personal data.17 This is in difference to Commissioners who are public office
holders. Information pertaining to the mission costs of the Members of the Commission is
proactively published on Europa website.
Nonetheless, OLAF publishes information on its activities on its website, including where
appropriate about missions of its staff, including top managers. We consider that through
the above-mentioned initiative, the appropriate level of public transparency with regard to
the travels of top officials is ensured.
In the light of the above, we have to conclude that the transfer of personal data through
the public disclosure of the personal data included in the relevant costs statements cannot
be considered as fulfilling the requirements of Regulation 2018/1725. In consequence, the
exception under Article 4(1)(b) of Regulation 1049/2001 applies, as no need to publicly
disclose the personal data included therein is established and, in addition, it can be
assumed that the legitimate rights of the data subjects concerned would be prejudiced by
such disclosure.
2.2 General presumption of non-accessibility to OLAF investigation documents
As your application concerns indifferently the investigation related travels, those documents
additionally fall under exception from public access to documents 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, unless there is an overriding
public interest in disclosure.
The General Court recognised a general presumption of non-accessibility for documents in
OLAF case files18. The Court considered that public disclosure of documents related to
OLAF's investigations could fundamentally undermine the objectives of its investigative
14 Ibidem, para 54 and 59; see also judgement of the General Court of 25 September 2018,
Psara et al. v
European Parliament, cited above, par. 72.
15 Ibidem, par. 91.
16 Staff Regulations of Officials and conditions of employment for other Servants of the EU.
17 Judgement of 16 July 2015,
ClientEarth and PAN Europe v
EFSA, cited above, par. 31.
18 Judgment of the General Court of 26 April 2016,
Strack v Commission, T-221/08, EU:T:2016:242, par. 162.
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activities, as well as its decision making process, both now and in the future.
That 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
gathered19. In this case, Regulation 883/2013, which governs OLAF's administrative
activity, 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, creating risks in
particular by revealing travelling places, people met, etc. It would also seriously jeopardize
the full independence of future OLAF investigations and their objectives by revealing
OLAF’s strategy and working methods.20
The specific confidentiality rules regarding the documents related to OLAF investigations
are justified not only in so far as OLAF collects, as part of such an investigation, sensitive
business secrets and highly sensitive information on individuals whose disclosure could
significantly harm their reputation, but also to the extent that the access to documents
relating to an investigation by OLAF, even after the conclusion of the investigation in
question might, as explained above, seriously hamper the work of OLAF, disclose the
methodology and strategy, harm the availability of those involved in the procedure to
collaborate in the future and, therefore prejudice the proper functioning of the
investigations in question and the achievement of their objectives.
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 No 1049/2001.
No meaningful partial access to the cost statements concerned is possible, as the entirety
of the information falling under the scope of your application and included therein is
19 Judgment of the Court of Justice of 28 June 2012,
Agrofert Holding v
Commission, C-477/10 P,
EU:C:2012:394, par. 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, par. 55 ff.
20 See judgement of the Court of Justice of 28 June 2012
Agrofert Holding v
Commission, cited above, par. 66.
6
covered by the exception in Article 4(1)(b) of Regulation1049/2001, and in part
additionally fall entirely under the 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 exception laid down in Article 4(1)(b) of Regulation 1049/2001 is an absolute
exception, i.e. its applicability does not need to be balanced against any possible
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 has to be, firstly, 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, an application for public access to OLAF's documents
under Regulation 1049/2001 would have to contain clear elements to indicate the
existence of an overriding interest to justify putting internal OLAF documents and other
information related to its investigations into the public domain. In this case, OLAF
considers there are no elements that would show the existence of an overriding public
interest in disclosing the requested documents.
5. 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. We also wish to inform you that with regard to the repetitive request, the review is
limited only to the assessment that the legal/factual circumstances have not relevantly
changed since the previous reply.
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,
Beatriz SANZ REDRADO
7
Privacy statement
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.
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 Controlle
r (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 Superviso
r (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 12/01/2021 11:10 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482
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