Ref. Ares(2022)3019480 - 13/04/2022
EUROPEAN EXTERNAL ACTION SERVICE
DG Resource Management
The Director-General
Brussels, 13 April 2022
eeas.sg.2 (2022) 2772983
Mr Maximilian Henning
by electronic mail
Subject:
Your confirmatory request for access to documents
Our ref:
2022/033
Dear Mr Henning,
I would like to thank you for your confirmatory application of 4 April 2022 following your request
for access to documents (EEAS ref: 2022/033).
As requested, I have examined the decision of 1 April 2022 not to grant you access to the
following documents:
1. 69 documents filled in ARES, related to technical specifications, financial offer,
monthly specific contracts and contract amendments
2. 97 documents filled in ARES, related to invoices, monthly reports and payments
After carefully assessing the arguments in your confirmatory application letter, I regret to inform
you that they did not lead us to reverse our position.
As our services explained in the initial reply, the disclosure of any of the documents, either listed
above, as a whole, or partially, would make public the security setup and it would reveal security
procedures and expose possible existing vulnerabilities, if any, of the EU Delegation in
Afghanistan. Such information, if publicly released, would give an advantage to adverse actors
such as terrorist organisations operating in the country, thus putting at risk the safety and
security of EU staff based in Kabul. In addition, these documents also contain sensitive
commercial information of the successful candidate, such as the prices that were offered for
each post and service, yearly turnovers, operating plans, and information on other clients that
were a crucial aspect during the evaluation of the tenders. Their public disclosure would harm
the legitimate commercial interests of the successful candidate, and the EEAS could be seen
as the actor facilitating industrial/corporate espionage.
Therefore, their release to the public would undermine the protection of public security, as well
as commercial interests of a legal person as per Article 4(1)(a), first indent and Article 4(2), first
indent of the Regulation 1049/2001. Although I share your view regarding the importance of
transparency for the sake of public interest, the protection of the public interest regarding public
security must also be preserved.
Service Européen pour l'Action Extérieure, B-1049 Bruxelles / Europese dienst voor extern optreden, B-1049 Brussel - Belgium.
Telephone: (32-2) 584 11 11.
In particular, the public interest exception laid down in Article 4(1)(a) of Regulation (EC) No
1049/2001 is subject to a particular regime as compared to the other exceptions included in
Article 4.
On the one hand, the Institution “must be recognised as enjoying a wide discretion for the
purpose of determining whether the disclosure of documents relating to the fields covered by
those exceptions relating to the public interest provided for in Article 4(1)(a) of Regulation (EC)
No 1049/2001 could undermine the public interest1” .
On the other hand, once the Institution has reached the conclusion that release would indeed
undermine the public interest in this area. It has no choice but to refuse access, because “it is
clear from the wording of Article 4(1)(a) of Regulation (EC) No 1049/2001, that, as regards the
exceptions to the right of access provided for by that provision, refusal of access by the
institution is mandatory where disclosure of a document to the public would undermine the
interests which that provision protects, without the need, in such a case and in contrast to the
provisions, in particular, of Article 4(2), to balance the requirements connected to the protection
of those interests against those which stem from other interests2”.
Therefore, while the EEAS enjoys a wide discretion in assessing the impact of the release of
documents on public security, it is barred from taking into account other legitimate interests that
might override the conclusion that giving access to a document would harm the protected
interest and granting access nonetheless3.
For the sake of completeness and notwithstanding the fact that Article 4(1)(a) of Regulation
(EC) No 1049/2001 imposes not to disclose the requested documents, nor in part nor in full, the
EEAS considers, as regards your reference to the growing public scrutiny on the private security
industry, that such an argument of a general nature is in any case not sufficient to override the
public interests protected under that provision and Article 4(2), first indent of that Regulation.
For all these reasons, I hereby confirm that the above-mentioned documents cannot be released
to the public, neither fully nor partially. Should you not be satisfied with this response, you have
a right, in accordance with Article 8 of the Regulation, to institute court proceedings against the
European External Action Service and/or make a complaint to the Ombudsman, under the
conditions laid down in Articles 263 and 228 of the Treaty of the Functioning of the EU
respectively.
Yours sincerely,
Gianmarco Di Vita
1 Judgments of 1 February 2007, Sison v Council, C-266/05 P, EU:C:2007:75, paragraph 34; of 12 September 2013,
Besselink v Council, T-331/11, EU:T:2013:419, paragraph 32; and of 3 October 2012, Jurašinović v Council, T-
63/10, EU:T:2012:516, paragraph 32.
2 Judgments of 7 February 2018, Access Info Europe v Commission, T-851/16, EU:T:2018:69, paragraph 40, and
Access Info Europe v Commission, T-852/16, EU:T:2018:71, paragraph 40 and the case-law cited
3 Order of 20 May 2020, Nord Stream 2 v Parliament and Council, T-526/19, EU:T:2020:210, paragraph 61 and the
case-law cited.
Electronically signed on 13/04/2022 17:35 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121
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