Ref. Ares(2021)7915843 - 21/12/2021
EUROPEAN COMMISSION
SECRETARIAT-GENERAL
Directorate E - Citizens, Health, Migration & Security Union
The Director
Brussels
SG.E.1/TB
Sergio Pérez Sangiao
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Dear Sir,
Subject:
Your application for access to documents – Ref GestDem No 2021/7174
In your e-mail of 18 November 2021, you request access to documents and this request
has been registered on the following day under the above-mentioned reference number.
You request access to “
All correspondence (including reports, official letters, emails,
databases, attachments, minutes and memoranda of meetings, as well as any other public
document not mentioned in the list above) sent or received by the Secretariat-General or
Presidency of the European Commission, and in particular by President Ursula von der
Leyen and her team, from 1 January 2020 to the present with the Polish Government on
LGTBI policies, equality policies, LGTBI and any other similar issues in Poland or
Europe in general” (free translation)
Your application concerns the following documents:
- Letter of formal notice under Article 258 TFEU to Poland of 15 July 2021 in
infringement case INFR(2021)2115 (‘Incompatibility with EU non-discrimination
law of resolutions adopted by Polish municipalities/regions on the so-called
‘LGBT ideology free zones’);
- Reply of Poland of 15 September 2021 to the letter of formal notice in
infringement case INFR(2021)2115;
- Letter of formal notice under Article 258 TFEU to Poland of 18 February 2021 in
infringement case INFR(2020)2322 (“Incorrect transposition of the Council
Framework decision 2008/913/JHA by Poland”);
- Reply of Poland of 19 April 2021 to the letter of formal notice in infringement
case INFR(2020)2322;
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Article 4(2), third indent of Regulation 1049/2001 provides that the
'institutions shall
refuse access to a document where disclosure would undermine the protection of […]
the
purpose of inspections, investigations and audits'.
The documents to which you request access form part of the procedure laid down in
Article 258 of the Treaty on the Functioning of the European Union, which consists of
two consecutive stages, the administrative pre-litigation stage and the judicial stage
before the Court of Justice of the European Union. The purpose of the pre-litigation
procedure is to allow the Member State to put an end to any alleged infringement, to
enable it to exercise its rights of defense and to define the subject matter of the dispute
with a view to bringing an action before the Court.
The requested documents relate to two infringement procedures, which are ongoing.
Public disclosure of the requested documents would not only negatively influence the
dialogue between the European Commission and the Member State, for which a climate
of trust is essential, but would also alter the strictly bilateral nature of the infringement
procedures as provided for in Article 258 of the Treaty on the Functioning of the
European Union. Such disclosure would consequently adversely affect the European
Commission's investigations, as it would undermine the climate of mutual trust required
to resolve disputes between the European Commission and the Member State concerned,
without having to use the judicial phase of the infringement procedure.
The EU Courts underlined on several occasions that in ongoing infringement cases, the
institution may base itself on a general presumption of non-disclosure.1
The disclosure of the requested document would undermine the purpose of the ongoing
investigation. In particular, its disclosure at this point in time would affect the climate of
mutual trust between the authorities of the Member State and the Commission, which is
required to enable them to resolve the case without having to refer it to the Court of
Justice. Therefore, the exception laid down in Article 4(2), third indent of Regulation
(EC) No 1049/2001 applies to this document.
The exceptions laid down in Article 4(2) must be waived if there is an overriding public
interest in disclosure. Such an interest must, first, be public and, secondly, outweigh the
harm caused by disclosure. Based on the elements at my disposal, I have not been able to
establish the existence of any overriding public interest in disclosure of the documents in
question.
In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to make
a confirmatory application requesting the Commission to review this position.
1
For example, Judgment of 14 November 2013, Liga para a Protecção da Natureza and Finland v
Commission, Cases C-514/11 P and C-605/11 P, EU:C:2013:738, paragraphs 55, 65-68; Judgment of
the Court of Justice 16 July 2015 in case C-612/13 P, ClientEarth v Commission; and Judgment of 11
December 2001, Petrie and Others v Commission, T-191/99, EU:T:2001:284, paragraph 68.
2
Such a confirmatory application should be addressed within 15 working days upon receipt
of this letter to the Secretary-General of the Commission at the following address:
European Commission
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1)
BERL 7/076
B-1049 Bruxelles
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
William SLEATH
3
Electronically signed on 21/12/2021 15:26 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482