Ref. Ares(2022)2238304 - 28/03/2022
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR TRADE
The Director-General
Brussels
TRADE/SW/R3/2269808
Mr Barnaby Pace
Global Witness
Rue Belliard 53
1000 Bruxelles
by email only: ask+request-10807-
xxxxxxxx@xxxxxxxx.xxx
Subject: Your application for access to documents – Ref GestDem 2022/1402
Dear Mr Pace,
I refer to your application dated 9 March 2022, in which you make a request for access to
documents under Regulation (EC) No 1049/20011 (‘Regulation 1049/2001’), registered
on the same date under the above mentioned reference number.
1. SCOPE OF YOUR REQUEST
In your request, you asked for access to:
“All documents—including but not limited to correspondence, emails, minutes, notes (hand
written or electronic), audio or video recordings, verbatim reports, operational conclusions,
lines to take, briefings, and presentations—related to the meeting on February 23 between Valdis
Dombrovskis and Equinor ASA.”
2. ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
In accordance with settled case law2, when an institution is asked to disclose a document,
it must assess, in each individual case, whether that document falls within the exceptions
1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 20 May 2001
regarding public access to European Parliament, Council and Commission documents (OJ L 145,
31.5.2001, p. 43).
2 Judgment in
Sweden and Maurizio Turco v Council, Joined cases C-39/05 P and C-52/05 P,
EU:C:2008:374, paragraph 35.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: CHAR 07/067 - Tel. direct line +32 229-60143
xxxxxx.xxxxxx@xx.xxxxxx.xx
to the right of public access to documents set out in Article 4 of Regulation 1049/2001.
Such assessment is carried out in a multi-step approach:
- first, the institution must satisfy itself that the document relates to one of the
exceptions, and if so, decide which parts of it are covered by that exception;
- second, it must examine whether disclosure of the parts of the document in
question pose a ‘
reasonably foreseeable and not purely hypothetical’ risk of
undermining the protection of the interest covered by the exception;
- third, if it takes the view that disclosure would undermine the protection of any of
the interests defined under Article 4(2) and Article 4(3) of Regulation 1049/2001,
the institution is required ‘
to ascertain whether there is any overriding public
interest justifying disclosure’3.
In view of the objectives pursued by Regulation 1049/2001, notably to give the public
the widest possible right of access to documents4, ‘
the exceptions to that right […] must
be interpreted and applied strictly.’5
In reply to your request, I can inform you that we have identified
three documents that
fall within the scope of your request. The identified documents are listed for ease of
reference in Annex I. For each of the documents the Annex provides a description and
indicates whether parts or entire documents are withheld and if so, on which grounds
pursuant to Regulation 1049/2001. Copies of the accessible documents are enclosed to
this letter.
Having examined the requested documents under the applicable legal framework, I am
pleased to grant you partial access to all three documents
. In all three documents names
and other personal data have been redacted pursuant to article 4(1)(b) of Regulation
1049/2001 and in accordance with Regulation (EC) No 2018/1725. Hence, the main
content of these documents relevant to your request is accessible.
In document 3, in addition to personal data, one sentence was redacted as it is covered by
the exception set out in article 4(1)(a) third indent of Regulation 1049/2001 (protection of
the public interest as regards international relations).
The reasons justifying the application of the above-mentioned exceptions are set out
below in sections 2.1 and 2.2.
2.1 Protection of the public interest as regards international relations (document 3)
Article 4(1)(a), third indent, of Regulation 1049/2001 provides that ‘
[t]he institutions
shall refuse access to a document where disclosure would undermine the protection of:
the public interest as regards: […] international relations’.
According to settled case-law, ‘
the particularly sensitive and essential nature of the
interests protected by Article 4(1)(a) of Regulation 1049/2001, combined with the fact
that access must be refused by the institution, under that provision, if disclosure of a
3
Id., paragraphs 37-43. See also judgment in
Council v Sophie in ‘t Veld, C-350/12 P, EU:C:2014:2039,
paragraphs 52-64.
4 See Regulation 1049/2001, recital (4).
5 Judgment in
Sweden v Commission, C-64/05 P, EU:C:2007:802, paragraph 66.
2
document to the public would undermine those interests, confers on the decision which
must thus be adopted by the institution a complex and delicate nature which calls for the
exercise of particular care. Such a decision therefore requires a margin of
appreciation’6. In this context, the Court of Justice has acknowledged that the
institutions enjoy ‘
a wide discretion for the purpose of determining whether the
disclosure of documents relating to the fields covered by [the] exceptions [under Article
4(1)(a)] could undermine the public interest’7.
The General Court found that ‘
it is possible that the disclosure of European Union
positions in international negotiations could damage the protection of the public interest
as regards international relations’ and ‘have a negative effect on the negotiating position
of the European Union’ as well as ‘reveal, indirectly, those of other parties to the
negotiations’8. Moreover, ‘
the positions taken by the Union are, by definition, subject to
change depending on the course of those negotiations and on concessions and
compromises made in that context by the various stakeholders. The formulation of
negotiating positions may involve a number of tactical considerations on the part of the
negotiators, including the Union itself. In that context, it cannot be precluded that
disclosure by the Union, to the public, of its own negotiating positions, when the
negotiating positions of the other parties remain secret, could, in practice, have a
negative effect on the negotiating capacity of the Union’ 9.
Disclosure of the one sentence in document 3 would undermine the protection of the
public interest as regards international relations, because Equinor refers to the policy
approaches of specific countries (one EU Member State, 2 non-EU countries) in a way
that could be misinterpreted. If this were to be disclosed, it could thus have an effect on
the EU’s international relations with these 2 non-EU countries as well as other third
countries.
2.2 Protection of the privacy and integrity of the individual (documents 1-3)
Pursuant to Article 4(1)(b) of Regulation 1049/2001, access to a document has to be refused
if its disclosure would undermine the protection of privacy and the integrity of the
individual, in particular in accordance with European Union legislation regarding the
protection of personal data.
The applicable legislation in this field is Regulation (EC) No 2018/1725 of the European
Parliament and of the Council of 23 October 2018 on the protection of natural persons
with regard to the processing of personal data by the Union institutions, bodies, offices and
agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001
and Decision No 1247/2002/EC10 (‘Regulation 2018/1725’).
Documents 1-3 contain personal information, such as names, e-mail addresses, telephone
numbers that allow the identification of natural persons, as well as other personal
information.
6 Judgment in
Sison v Council, C-266/05 P, EU:C:2007:75, paragraph 35.
7 Judgment in
Council v Sophie in ‘t Veld, C-350/12P, EU:C:2014:2039, paragraph 63.
8 Judgment in
Sophie in’t Veld v Commission, T-301/10, EU:T:2013:135, paragraphs 123-125.
9 Id., paragraph 125.
10 Official Journal L 205 of 21.11.2018, p. 39.
3
Indeed, Article 3(1) of Regulation 2018/1725 provides that personal data ‘
means any
information relating to an identified or identifiable natural person […]’. The Court of
Justice has specified that
any information, which by reason of its content, purpose or effect,
is linked to a particular person is to be considered as personal data.11 Please note in this
respect that the names, signatures, functions, telephone numbers and/or initials pertaining to
staff members of an institution are to be considered personal data.12
In its judgment in Case C-28/08 P (
Bavarian Lager)13, the Court of Justice ruled that when a
request is made for access to documents containing personal data, the Data Protection
Regulation becomes fully applicable.14
Pursuant to Article 9(1)(b) of Regulation 2018/1725, personal data shall only be transmitted
to recipients established in the Union other than Union institutions and bodies if
‘[t]he
recipient establishes that it is necessary to have the data transmitted for a specific purpose
in the public interest and the controller, where there is any reason to assume that the data
subject’s legitimate interests might be prejudiced, establishes that it is proportionate to
transmit the personal data for that specific purpose after having demonstrably weighed the
various competing interests’. Only if these conditions are fulfilled and the processing
constitutes lawful processing in accordance with the requirements of Article 5 of Regulation
2018/1725, can the transmission of personal data occur.
According to Article 9(1)(b) of Regulation 2018/1725, the European Commission has to
examine the further conditions for a lawful processing of personal data only if the first
condition is fulfilled, namely if the recipient has established that it is necessary to have the
data transmitted for a specific purpose in the public interest. It is only in this case that the
European Commission has to examine whether there is a reason to assume that the data
subject’s legitimate interests might be prejudiced and, in the affirmative, establish the
proportionality of the transmission of the personal data for that specific purpose after having
demonstrably weighed the various competing interests.
In your application, you do not put forward any arguments to establish the necessity to have
the data transmitted for a specific purpose in the public interest. Therefore, the European
Commission does not have to examine whether there is a reason to assume that the data
subject’s legitimate interests might be prejudiced. Notwithstanding the above, please note
that there are reasons to assume that the legitimate interests of the data subjects concerned
would be prejudiced by disclosure of the personal data reflected in the documents, as there
is a real and non-hypothetical risk that such public disclosure would harm their privacy and
subject them to unsolicited external contacts.
11 Judgment of the Court of Justice of the European Union of 20 December 2017 in C
ase C-434/16, Peter
Novak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35,
ECLI:EU:T:2018:560.
12 Judgment of the General Court of 19 September 2018 in c
ase T-39/17, Port de Brest v Commission,
paragraphs 43-44,
ECLI:EU:T:2018:560.
13 Judgment of 29 June 2010 in Case C-28/08 P,
European Commission v The Bavarian Lager Co. Ltd,
EU:C:2010:378, paragraph 59.
14 Whereas this judgment specifically related to Regulation (EC) No 45/2001 of the European Parliament
and of the Council of 18 December 2000 on the protection of individuals with regard to the processing
of personal data by the Community institutions and bodies and on the free movement of such data, the
principles set out therein are also applicable under the new data protection regime established by
Regulation 2018/1725.
4
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation 1049/2001, access
cannot be granted to the personal data, as the need to obtain access thereto for a purpose in
the public interest has not been substantiated and there is no reason to think that the
legitimate interests of the individuals concerned would not be prejudiced by disclosure of
the personal data concerned.
However, in line with the Commission’s commitment to ensure transparency and
accountability, the names of the Members of Cabinet and the names of the senior
management of the Commission are disclosed.
Please note that documents originating from third parties are disclosed to you based on
Regulation 1049/2001. However, this disclosure is without prejudice to the rules on
intellectual property, which may limit your right to reproduce or exploit the released
documents without the agreement of the originator, who may hold an intellectual property
right on them. The European Commission does not assume any responsibility from their
reuse.
Document 2 was drawn up for internal use under the responsibility of the relevant service
of the Executive Vice-President’s Cabinet. It solely reflects the author's interpretation of
the interventions made and does not set out any official position of the third parties to
which the document refers, which was not consulted on its content. It does not reflect the
position of the Commission and cannot be quoted as such.
3. MEANS OF REDRESS
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting the Commission to review this position.
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:
Secretary-General
European Commission
Transparency, Document Management & Access to Documents
BERL 7/76
Rue de la Loi 200/Wetstraat 200
1049 Brussels
Belgium
or by email to: xxxxxxxxxx@xx.xxxxxx.xx.
Yours sincerely,
Sabine WEYAND
Encl.:
Annex I: List of documents
3 documents
(partially) released
5
Electronically signed on 25/03/2022 12:19 (UTC+01) in accordance with Article 11 of Commission Decision (EU) 2021/2121