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28th Sep 2020

EU investment bank confirms secrecy of VW fraud report

  • A European Investment Bank exhibit at the 2013 International Transport Forum (Photo: International Transport Forum)

The European Investment Bank (EIB) decided on Tuesday (17 April) that a report about how carmaker Volkswagen Group (VW) was able to acquire a €400m loan by deception should remain confidential in its entirety.

In a six-page letter, EIB secretary general Marjut Santoni said that he agreed with the decision of his staff to refuse EUobserver access to the report, as well as to any EIB emails that discussed its contents.

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The document, by anti-fraud agency Olaf, reportedly explains how the German car manufacturer was able to acquire the loan in 2009, while withholding from the bank that it was producing millions of diesel cars with illegal emissions-cheating software.

This website had asked the EIB for the Olaf report in a formal access to documents request last January, after Olaf had turned it down.

Six weeks ago, the Luxembourg-based bank refused access to that report, because "its disclosure would seriously undermine the protection of i) the privacy and the integrity of individuals, ii) ongoing court proceedings, iii) the purpose of investigations".

On Tuesday, Santoni wrote to say that the bank had reviewed the decision, but came to the same conclusion.

He gave several reasons.

Ongoing investigation

One is that by keeping the report confidential, the bank was protecting ongoing court proceedings and ongoing investigations at national level.

Publishing the report would "distort the principle of the sound administration of justice".

While Santoni did not specify, this would refer to investigations by the Braunschweig public prosecutor in Germany.

However, a German report by Das Erste last February said that Olaf had only sent the report to Braunschweig in English, which made it inadmissible.

Attorney general Klaus Ziehe confirmed to EUobserver in an email on Wednesday morning that the Braunschweig public prosecutor had opened a preliminary investigation on the basis of Olaf documents.

He noted that Olaf had "meanwhile" translated the "main parts" of its evidence into German. The full translation was expected for next month - nine months after Olaf had finished the English version.

Ziehe said it was still open when and if the investigation would lead to a decision to prosecute. He did note that the defendant – i.e. those responsible for the deception – had been given access to the Olaf documents.

Internal consultations

The EIB secretary general also noted that "internal discussions and consultations" about the Olaf report were "ongoing".

"Disclosure [of the report] would therefore seriously undermine any final outcome on the bank's consideration of this file," wrote Santoni.

EUobserver had argued that there could be an overriding public interest in disclosing the report, because it would allow citizens to see what went wrong. We also requested internal emails about the report, so that citizens may determine if they think that the bank is doing enough to learn lessons from the affair.

But according to the EIB the reasons given were "not sufficiently specific to establish an overriding public interest that would prevail over the protection afforded by the [EIB's transparency policy]'s exceptions invoked by the bank in this case".

European Parliament

This website also pointed out in its appeal that since it had made its request, the European Parliament adopted a resolution in which it asked for the release of the report.

But the EIB merely stated that it had "taken note of the parliament's call regarding this issue", and that it had responded to interested MEPs "in line with the initial response" given to EUobserver – i.e. refusal to disclose the report.

Not emissions-related

Santoni also dismissed another argument given by EUobserver, related to an international treaty called the Aarhus Convention.

The European Union is a party to this 1998 agreement on access to environmental information, including information related to emissions into the environment.

However, the EIB said that the report did not qualify as environmental information.

Santoni also noted that the Olaf investigation "did not identify any failure in the EIB processes linked to the appraisal, approval, and monitoring of the EIB loan".

The bank also upheld the decision not to disclose any internal emails in which lessons learned were discussed.

This article was updated on Wednesday 18 April, 12:04PM, to include a comment from Braunschweig attorney general Klaus Ziehe. It was further updated on Monday 23 April, 7:44AM, to correct that Volkswagen was not a defendant in the German case. Only natural persons can be.

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