This is an HTML version of an attachment to the Freedom of Information request 'Polish implementation of the re-use directive'.


 
Ref. Ares(2011)1126542 - 21/10/2011
EUROPEAN COMMISSION 
Information Society and Media Directorate-General 
 
 
  The Director-General 
 
Brussels,  
INFSO/E4/KJP/jf 
D/ARES(2011)  
Katarzyna Batko-Toluc 
 
via e-mail: xxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx 
 
 
Subject: 
Request to Access to documents under Regulation No 1049/20011 
regarding public access to European Parliament, Council and 
Commission documents 

Dear Mrs Batko-Toluc, 
 
Thank you for your e-mail registered on 3rd October 2011 (Gestdem Ref. 2011/5046) 
requesting access to documents under Regulation No 1049/2001. You have requested 
access to electronic copies of whole correspondence between the Polish government and 
the European Commission regarding transposition of Directive No 2003/98/EC2on the 
re-use of public sector information in Poland since 1st January 2005.  
I am very sorry to inform you that at this point of the infringement procedure the required 
documents cannot be made available to you. The case concerning incorrect transposition of 
the Directive on the re-use of public sector information is currently pending before the 
European Court of Justice. The requested documents are composed of various administrative 
letters proceeding or accompanying the infringement procedure, infringement documents 
including letter of formal notice, reasoned opinion and replies to those documents as well as 
all pleadings before the Court. Having examined the nature and the content of all those 
documents, it appeared that they fall within the exceptions set out in Article 4, paragraph 
2, second and third indents, concerning the refusal of access to a document where 
disclosure would undermine the protection of the court proceedings and the protection of 
investigations, unless there is an overriding public interest in disclosure. Please find 
attached the list of exceptions provided for by Regulation 1049/2001.  
 
The scope of exceptions was clarified by the European Courts on many occasions (see 
for instance case Petrie  T-191/99, judgment of 11 December 2001 and most recently 
joined cases C-514/07 P, C-528/07 P and C-532/07 P, judgment of 21 September 2011).  
 
                                                 
1   L145, 31.05.2001, page 43.  
 
2   OJ L345, 31.12.2003, pages 90-96 
 
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111 
Office: BU25 6/183 - Tel. direct line +352 -4301-31418 - Fax +352 -4301-34959 
 
Email: xxxxxxxxx.xxxxxxxxxxxxxxxxx@xx.xxxxxx.xx 

According to the Court, the Member States are entitled to expect the Commission to 
guarantee confidentiality during investigations which might lead to an infringement 
procedure. This requirement of confidentiality remains even after the matter has been 
brought before the Court of Justice, on the ground that it cannot be ruled out that the 
discussions between the Commission and the Member State in question regarding the 
latter's voluntary compliance with the Treaty requirements may continue during the court 
proceedings and up to the delivery of the judgment of the Court of Justice. Moreover, a 
disclosure of the pleadings of the parties to the case pending before the Court would 
undermine the court proceeding to which they relate. After studying requested 
documents, it also appeared that a partial access, i.e. access to some of the requested 
documents or their parts may equally undermine the possibility of reaching an amicable 
setting of the case and upset the court proceeding in question. Furthermore, after 
studying your request, there would not appear to be an overriding public interest 
justifying the disclosure of the documents in question. 
Nevertheless, I would like to draw your attention to the fact, that according to the calendar of 
the European Court of Justice, the judgement in case C-362/10 concerning the infringement 
case in question is expected on 27 October 2011. Following delivery of the judgement, the 
above-mentioned exceptions would no longer be applicable.   
 
If you wish the above mentioned position to be nonetheless reconsidered, you are entitled 
to write to the Secretary-General of the Commission, at the address given below, 
confirming your initial request. That must be done within 15 working days after receipt 
of this letter. Once that deadline has passed, your initial request will be considered 
withdrawn. 
The Secretary-General will inform you of the result of the reconsideration within 15 
working days from the date of registration of your request, either by granting you access 
to the document or confirming the refusal. In the latter case, he will also point out the 
remedies open to you. 
All correspondence must be sent to the following address: 
The Secretary-General 
European Commission  
B-1049 BRUSSELS 
 
Yours sincerely, 
 
    (e-Signed) 
Robert Madelin 
Encl: 
Annex I – Exceptions provided for by the policy on access to Commission 
documents 


 


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