Ref. Ares(2021)7724861 - 14/12/2021
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR BUDGET
The Director-General
Brussels, 14 December 2021
By email to:
ask+request-10246-
xxxxxxxx@xxxxxxxx.xxx
with acknowledgment of receipt
Subject:
Your application for access to documents – Ref GestDem No 2021/7224
Dear Professors Alemanno and Pech,
We refer to your e-mail dated 22 November 2021, registered the following day under
GESTDEM number 2021/7224, by which you request access to documents in accordance
with Regulation (EC) No. 1049/20011 (‘Regulation 1049/2001’).
1.
DOCUMENTS CONCERNED
You request access to ‘two letters signed by Director-General for Budget Gert-Jan
Koopman and sent to the Hungarian and Polish governments on November 19, 2021
arguing that problems with the independence of the judiciary, ineffective prosecution of
corruption, and deficiencies in public procurement could pose a risk to the EU’s financial
interests’ (the ‘letters’).
To support your request, you also refer to a tweet by the European Commission Chief
Spokesperson, Mr Mamer, confirming the existence of these letters, and to articles by
media outlets allegedly reporting their content.
The letters were sent by the Commission services pursuant to Article 6(4) of Regulation
(EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16
December 2020 on a general regime of conditionality for the protection of the Union
budget2 (‘Regulation 2020/2092’) and are therefore part of the Commission files under
Article 6 of Regulation 2020/2092.
1 Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and
Commission documents, OJ L145 of 31.5.2001, p. 43.
2
OJ L 433I, 22.12.2020, p. 1.
Professors Alemanno and Pech
c/o The Good Lobby
Rue d’Arlon 53
1000 Brussels, Belgium
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Having carefully examined your request, I have come to the conclusion that your
application cannot be granted, as disclosure is prevented by one of the exceptions to the
right of access laid down in Article 4 of Regulation 1049/2001.
2.
APPLICABLE EXCEPTIONS
As the effects of granting access to documents under Regulation 1049/2001 are
erga omnes,
in the sense that such documents become public, the disclosure of the requested documents
at this stage might hurt the protection of lawful interests, as set forth in Article 4 of
Regulation 1049/2001.
Pursuant to Article 4(1)(a), fourth indent, of Regulation 1049/2001, the Commission shall
refuse access to a document where its disclosure would undermine the protection of the
public interest as regards the financial policy of the European Union. According to the case
law, the Commission enjoys a wide discretion when considering whether access to a
document may undermine the public interest3.
The financial policy of the European Union includes budgetary matters and the protection of
the financial interests of the Union. As the letters are part of the Commission files under
Article 6 of Regulation 2020/2092, whose purpose is to protect the sound financial
management of the Union budget and the financial interests of the Union from breaches of
the principles of the rule of law, the requested documents are manifestly covered in their
entirety by the exception set out in Article 4(1)(a), fourth indent of Regulation 1049/2001.
Pursuant to Article 4(2), third indent of Regulation 1049/2001 the Commission shall refuse
access to a document where its disclosure would undermine the protection of the purpose of
inspections, investigations and audits.
Pursuant to Article 4(3) of Regulation 1049/2001, access to the documents drawn by the
Commission or received by it in relation to a matter where the decision has not been taken
shall be refused if the disclosure of the documents would seriously undermine the
Commission's decision making process.
These exceptions aim at protecting the Commission’s capacity to ensure that Member States
and undertakings comply with their obligation under European Union law. For the effective
conduct of pending investigations it is of utmost importance that the Commission’s
investigative strategy, preliminary assessments of the case and planning of procedural steps
remain confidential.
As said above, the letters are part of the Commission’s files under Article 6 of Regulation
2020/2092. As such, they contain information from which the direction of the
Commission’s assessment under Regulation 2020/2092, the future procedural steps which it
may take, as well as its strategy may be revealed to the public. This information could easily
be misinterpreted or misrepresented as indications of the Commission’s possible final
assessment in this case.
In addition, as the letters were sent pursuant to Article 6(4) of Regulation 2020/2092, which
clearly refer to an intermediate step of the procedure established by that Regulation, set to
3 See judgment of 25 April 2007,
WWF European Policy Programme v Council, T-264/04,
ECLI:EU:T:2007:114, paragraph 40; see also judgment of 6 October 2021 T-827/17
Aeris Invest Sàrl
v ECB, T-827/17, ECLI:EU:T:2021:660, paragraph 159.
2
gather information necessary for the Commission’s assessment, it is clear that they relate to
a matter where a decision has not been taken.
The procedure set by Article 6 of Regulation 2020/2092 does not provide for third parties,
other than the Member State concerned, to have access to letters sent by the Commission
services or pursuant to Article 6(4). In analogy to State aid proceedings, if access to these
letters were granted, that would modify and call into question the procedure set by
Regulation 2020/20924.
Furthermore, under the procedure set by Article 6 of Regulation 2020/2092, the
Commission relies, among other things, on submissions by the Member State concerned
which typically contain sensitive data. Disclosure of this information would risk
jeopardising the the climate of mutual trust between the authorities of the Member State
and the Commission, in line with the principle of sincere cooperation (Article 4(3) TEU).
In view of the foregoing, the requested documents are manifestly covered in their entirety
by the exceptions set out in Article 4(2), third indent, and Article 4(3) of Regulation
1049/2001.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Pursuant to Article 4(2) and (3) of Regulation 1049/2001, the exception to the right of
access contained in that Article
must be waived if there is an overriding public interest in
disclosing the documents requested. In order for an overriding public interest in
disclosure to exist, this interest, firstly, has to be public (as opposed to private interests of
the applicant) and, secondly, overriding,
i.e. in this case it must outweigh the interest
protected under Article 4(2), third indent, and Article 4(3) of Regulation 1049/2001.
In your application you have not established arguments that would present an overriding
public interest to disclose the documents. Consequently, the prevailing interest in this
case lies in protecting the effectiveness of the Commission’s activities under the
procedure set by Article 6 of Regulation 2020/2092.
4.
PARTIAL ACCESS
I have also considered the possibility of granting partial access to the documents for
which access has been denied, in accordance with Article 4(6) of Regulation 1049/2001.
However, the general presumption of non-disclosure invoked above also applies to
partial disclosure for the documents concerned and, consequently, no partial access can
be granted.
4
In
TGI, a case which concerned an access to documents request to all documents in two State aid
cases, the Court of Justice upheld the Commission’s refusal and held that there exists with regard to
the exception related to the protection of the purpose of investigations a general presumption that
disclosure of documents in the file would undermine the purpose of State aid investigations. The Court
reasoned that this follows from the fact that under the State aid procedural rules the interested parties,
other than the Member State concerned, have no right to consult the documents in the administrative
file and should such access be granted under Regulation 1049/2001 the nature of the procedure is
likely to be modified and thus the system for review of State aid would be called into question. See
judgment of 29 June 2010,
Commission v Technische Glaswerke Ilmenau GmbH, C-139/07 P,
ECLI:EU:C:2010:376, paragraphs 58-59.
3
With regard to your reference to articles which appeared on the internet, some of which
allegedly cite excerpts of the letters or disclose their contents, the Commission did not
disclose the letters to the press and it does not comment or confirm leaks. For that reason,
your warrant that the contents of the letters were already disclosed and that therefore the
Commission should give access to them should not be granted.
5.
MEANS OF REDRESS
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, by writing
to the Commission’s Secretary-General at the address below, confirming your initial
request. You have fifteen (15) working days in which to do so from receipt of this reply
after which your initial request will be deemed to have been withdrawn.
The Secretary-General will inform you of the result of this review within fifteen (15)
working days from the registration of your request, either granting you access to the
documents or confirming the refusal. In the latter case, you will be informed of how you
can take further action.
All correspondence should be sent to 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 t
o: xxxxxxxxxx@xx.xxxxxx.xx.
Yours sincerely,
Electronically signed
Gert Jan KOOPMAN
4
Electronically signed on 14/12/2021 10:16 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482
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