Ref. Ares(2018)1314466 - 09/03/2018
EUROPEAN COMMISSION
DIRECTORATE-GENERAL MIGRATION and HOME AFFAIRS
The Director-General
Brussels,
By registered letter with acknowledgment of
receipt
Joe McNamee
European Digital Rights
Rue Belliard 20
1040 Bruxelles
Belgium
Advance copy by email: xxx@xxxxxxx.xx
Subject:
Your application for access to documents – Ref GestDem No 2018/435
Dear Mr McNamee,
We refer to your e-mail dated 18/01/2018 in which you make a request for access to
documents, registered on 19/01/2018 under the above mentioned reference number.
You request access to the following documents [numbering added for easier reference]:
[1]- all communications (including emails) exchanged in October, November and
December 2017 between DG HOME Unit D4 (Cybercrime) and the EU Delegation to the
Council of Europe regarding the draft Recommendation of the Council of Europe on the
roles and responsibilities of internet intermediaries;
[2]- the comments sent by DG HOME to the EU Delegation to the Council of Europe on
the draft Recommendation of the Council of Europe on the roles and responsibilities of
internet intermediaries;
[3]- the invitation sent to Member States to the meeting at 15h on Tuesday, 22nd
November to discuss comments received from DG HOME;
[4]- any notes / minutes from the above-mentioned meeting on 22nd November prepared
by the European Commission as well as input received from Member States following
this meeting;
[5]- all communications in the period October to December (inclusive) between
European Commission officials and Member States (individually or collectively)
regarding the draft Recommendation of the Council of Europe on the roles and
responsibilities of internet intermediaries;
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
[6]- communications between Commission officials agreeing that the view of the
Commission was that the draft Recommendation of the Council of Europe on the roles
and responsibilities of internet intermediaries was, as was apparently asserted in the
invitation to the 22nd November meeting, “in stark contrast with the EU acquis”.
I note that you lodged a request for access to documents with the EEAS1 on this same topic.
I inform you that this reply relates to the documents held by the Commission, Directorate
General Home Affairs and Migration (DG HOME) and does not deal with the documents
originating from the EEAS on this matter. You will receive a separate reply from the EEAS
pertaining to your request lodged with the EEAS.
Your application concerns the following documents:
[1]- all communications (including emails) exchanged in October, November and
December 2017 between DG HOME Unit D4 (Cybercrime) and the EU Delegation to
the Council of Europe regarding the draft Recommendation of the Council of Europe
on the roles and responsibilities of internet intermediaries;
A list of the documents originating from the Commission (DG HOME Unit D4) is included
in the Annex. Document 1.2 contains document 2.1 as an attachment. Document 1.6
contains document 2.2 as an attachment. Access to documents 2.1 and 2.2 is dealt with
under a different section.
With regard to the Commission's own documents, having examined the documents
requested under the provisions of Regulation (EC) No 1049/2001 regarding public access to
documents, I come to the following conclusions:
Full disclosure, taking account of the protection of personal data
Disclosure of document 1.3 can be granted. As you agreed in your request to any necessary
redactions for the protection of privacy according to Art. 4 (1)(b) of Regulation (EC) No
1049/2001, those redactions have been made, in line with the applicable legislation in this
field (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)2.
Partial access
Having examined the documents No. 1.1, 1.2, 1.5 and 1.6, requested under the provisions of
Regulation (EC) No 1049/2001 regarding public access to documents, I have come to the
conclusion that they may be partially disclosed. As you agreed to any necessary redactions
for the protection of privacy according to Art. 4 (1)(b) of Regulation (EC) No 1049/2001,
those redactions have been made, in the same way as for document 1.3.
Some parts of these documents have been blanked out as their disclosure is prevented by
exceptions to the right of access laid down in Article 4 of this Regulation.
The redacted parts of these documents contain informal sharing of information and views by
officials of the European Commission (DG HOME) with officials of the EEAS (EU
Delegation in Strasbourg) on the content of the draft recommendation, its impact on the
Union’s legislation and policies in the areas of fighting child sexual exploitation and
1 EEAS reference number of case: 2018/027
2 Official Journal L 8 of 12.1.2001, p. 1
2
terrorist propaganda online and on strategy and steps to take in order to coordinate the
positions of Member States in the Council of Europe, taking into account the process
leading to its adoption.
Disclosure of the redacted parts of these documents would seriously undermine the
protection of the decision-making process of the Commission. In fact, it would reveal
preliminary views and strategy options which were being considered. Commission officials
must be free to exchange information and share views in order to explore all possible
options in preparation of a policy decision free from external pressure. The possibility of
expressing views independently and to gather information with a view to contributing to the
smooth running of the decision-making process must be protected. Disclosure of such
exchanges of information and views of staff, even after a decision has been taken, would
seriously undermine the institutions’ decision-making process, as it would deter staff from
making such remarks independently and without being unduly influenced by the prospect of
wide disclosure exposing the institution and services to which the civil servants belong. This
reasoning extends to working contacts between officials in the Commission and in the
EEAS with regard to a file that is being handled jointly and in full sincere cooperation.
Discussions among colleagues from the two institutions and informal exchanges and
updates on developments are of the essence for a proper exercise of the Union’s external
action. Therefore the exception laid down in Article 4(3) second subparagraph of
Regulation (EC) No 1049/2001 applies to these documents.
The exceptions laid down in Article 4(3) of Regulation 1049/2001 apply unless there is an
overriding public interest in disclosure of the documents.
We have examined whether there could be an overriding public interest in disclosure, but
we have not been able to identify such an interest, for the same reasons as above explained.
Disclosure of redacted parts of document No. 1.2 would also undermine the protection of
the public interest as regards public security. This document contains information about
sensitive issues which could undermine the effectiveness of the EU policies in the fight
against child sexual abuse and terrorist propaganda online. The public dissemination of
those elements and the underlying analysis may be used by certain actors whose cooperation
is key in those policies to adopt positions that would be detrimental to achieving effective
results. Therefore the exception laid down in Article 4(1) first subparagraph of Regulation
(EC) No 1049/2001 applies to this document.
Refusal
Having examined the document No. 1.4 requested under the provisions of Regulation (EC)
No 1049/2001 regarding public access to documents, I regret to inform you that your
application cannot be granted, as disclosure is prevented by exceptions to the right of access
laid down in Article 4 of this Regulation.
The document which you seek to obtain is a message containing informal sharing of
information and views by officials of the European Commission (DG HOME) with officials
of the EEAS (EU Delegation in Strasbourg) on the strategy and steps adopted in order to
coordinate the positions of Member States in the Council of Europe on the draft
recommendation, taking into account the process leading to its adoption.
For similar reasons as explained above for documents 1.1, 1.2, 1.5 and 1.6, disclosure of this
document requested would seriously undermine the protection of the decision-making
3
process of the Commission. Therefore the exception laid down in Article 4(3) second
subparagraph of Regulation (EC) No 1049/2001 applies to this document.
The exceptions laid down in Article 4(3) of Regulation 1049/2001 apply unless there is an
overriding public interest in disclosure of the documents.
We have examined whether there could be an overriding public interest in disclosure, but
we have not been able to identify such an interest, for the same reasons as above explained.
We have considered whether partial access could be granted to the document. However, our
assessment is that it is not possible to grant access to an expunged version of the document,
as the remaining parts after expunging the confidential information might be meaningless or
illegible.
[2]- the comments sent by DG HOME to the EU Delegation to the Council of Europe
on the draft Recommendation of the Council of Europe on the roles and
responsibilities of internet intermediaries;
A list of the documents is included in the Annex (No. 2.1 and 2.2).
Having examined the documents requested under the provisions of Regulation (EC) No
1049/2001 regarding public access to documents, I regret to inform you that your
application cannot be granted, as disclosure is prevented by exceptions to the right of access
laid down in Article 4 of this Regulation.
Document No. 2.1 contains the analysis and views of a Commission official on the text of
the Recommendation. Document No. 2.2 contains the position of Commission's DG HOME
on the text of the Recommendation, commenting the text and including suggestions for
possible changes. Both documents refer to the impact of the draft Recommendation of the
Committee of Ministers of the Council of Europe to Member States on the roles and
responsibilities of internet intermediaries, especially on the Union’s legislation and policies
in the areas of fighting child sexual exploitation and terrorist propaganda online.
Document 2.1 has been included as an attachment to document 1.2 and document 3.1, and a
document substantially identical to it has been included as an attachment to document 3.8.
Document 2.2 has been included as an attachment to document 1.6.
For similar reasons as explained for redacted parts of documents No. 1.1, 1.2, 1.5, 1.6 and
3.1, as well as for the refusal to access documents 1.4 and 3.8, disclosure of the documents
2.1 and 2.2 requested would seriously undermine the protection of the decision-making
process of the Commission.
Therefore the exception laid down in Article 4(3) second subparagraph of Regulation (EC)
No 1049/2001 applies to these documents.
The exceptions laid down in Article 4(3) of Regulation 1049/2001 apply unless there is an
overriding public interest in disclosure of the documents.
We have examined whether there could be an overriding public interest in disclosure, but
we have not been able to identify such an interest, for the same reasons as above explained.
Disclosure of these documents requested would also undermine the protection of the public
interest as regards public security. For similar reasons as explained for redacted parts of
documents No. 1.2, and 3.1 and for document No. 3.8, the exception laid down in Article
4
4(1) (a) first subparagraph of Regulation (EC) No 1049/2001 therefore applies to these
documents.
We have considered whether partial access could be granted to the documents requested.
However, our assessment is that it is not possible to grant access to an expunged version of
the documents. The remaining parts after expunging the confidential information would
consist in the Council of Europe’s draft recommendation, and it would be pointless to
provide it to you since you participated in person in the work of the Council of Europe
Committee of Experts that drafted it and therefore can be considered to be fully aware of the
document3.
[3]- the invitation sent to Member States to the meeting at 15h on Tuesday, 22nd
November to discuss comments received from DG HOME; and
[4]- any notes / minutes from the above-mentioned meeting on 22nd November
prepared by the European Commission as well as input received from Member States
following this meeting;
DG HOME did not organise that meeting nor participated in it. It did not receive input from
Member States. We therefore regret to inform you that the Commission does not hold any
documents that would correspond to the description given in your application.
As specified in Article 2(3) of Regulation 1049/2001, the right of access as defined in
that regulation applies only to existing documents in the possession of the institution.
Given that no such documents, corresponding to the description given in your
application, are held by the Commission, the Commission is not in a position to handle
points 3 and 4 of your request.
[5]- all communications in the period October to December (inclusive) between
European Commission officials and Member States (individually or collectively)
regarding the draft Recommendation of the Council of Europe on the roles and
responsibilities of internet intermediaries;
A list of the documents is included in the Annex. Document 3.1 and document 3.8 contain
document 2.1 as an attachment. Access to document 2.1 is dealt with under a different
section.
Documents 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7, which you seek to obtain, are messages
containing informal sharing of information and views between officials of the Estonia
Presidency of the Council of the EU and officials of the European Commission (DG
HOME) on the content of the draft recommendation, its impact on the Union’s legislation
and policies in the areas of fighting child sexual exploitation and terrorist propaganda
online, on the process leading to its adoption at the relevant committee of the Council of
Europe and on the actions to be taken to help EU Member States coordinate their positions.
Document No. 3.8 contains the analysis and views of a Commission official in the context
of an exchange of information between a member of the Board and the secretariat of the
WeProtect Global Alliance to End Child Sexual Exploitation online. It refers to the impact
3 Committee of experts on Internet Intermediaries; Meeting report of 2nd meeting (29-30 September
2016), https://rm.coe.int/16806f6ec1; Meeting report of 3rd meeting (27-28 March 2017),
https://rm.coe.int/168070b74f; Meeting report of 3rd meeting (6 October 2017), https://rm.coe.int/msi-
net-4th-meeting-18-19-september-2017/168075f8e9.
5
of the draft Recommendation of the Council of Europe on the
WeProtect Global Alliance’s
activities and goals to promote national and global action to end the sexual exploitation of
children online, and to possible course of action.
Documents originating from the Estonia Presidency
Since documents No. 3.2, 3.4 and 3.5 originate from an official at the Estonia Presidency of
the Council, that Member State as originator of the documents has been consulted and
accepted to disclose the documents.
Disclosure of these documents can be granted. As you agreed in your request to any
necessary redactions for the protection of privacy according to Art. 4 (1)(b) of Regulation
(EC) No 1049/2001, those redactions have been made, in the same way as for documents
referred to above for which a similar reasoning applies.
Commission Documents
With regard to the Commission's own documents, having examined the documents
requested under the provisions of Regulation (EC) No 1049/2001 regarding public access to
documents, I come to the following conclusions:
Full disclosure, taking account of the protection of personal data
Disclosure of documents 3.3 and 3.6 can be granted. As you agreed to any necessary
redactions for the protection of privacy according to Art. 4 (1)(b) of Regulation (EC) No
1049/2001, those redactions have been made , in the same way as for documents referred to
above for which a similar reasoning applies.
Partial access
Having examined the documents No. 3.1 and 3.7, requested under the provisions of
Regulation (EC) No 1049/2001 regarding public access to documents, I have come to the
conclusion that they may be partially disclosed.
As you agreed to any necessary redactions for the protection of privacy according to Art. 4
(1)(b) of Regulation (EC) No 1049/2001, those redactions have been made, in the same way
as for documents referred to above for which a similar reasoning applies.
Some parts of these documents have been blanked out as their disclosure is prevented by
exceptions to the right of access laid down in Article 4 of this Regulation.
The redacted parts of the documents which you seek to containing informal sharing of
information and views by officials of the European Commission (DG HOME) with officials
of the Estonian Presidency of the Council of the EU on the content of the draft
recommendation, its impact on the Union’s legislation and policies in the areas of fighting
child sexual exploitation and terrorist propaganda online and on strategy and steps to take in
order to coordinate the positions of Member States in the Council of Europe, taking into
account the process leading to its adoption.
Disclosure of the redacted parts in the documents requested would seriously undermine the
protection of the decision-making process of the Commission. The reasons explained above
for documents 1.1, 1.2, 1.5 and 1.6 extend to working contacts between officials in the
Commission and in the Presidency of the Council with regard to a file that is being handled
in cooperation and where discussions among officials involved and informal exchanges and
6
updates on developments are of the essence for the proper exercise of the Union’s internal
and external competencies. Therefore, the exception laid down in Article 4(3) second
subparagraph of Regulation (EC) No 1049/2001 applies to these documents.
The exceptions laid down in Article 4(3) of Regulation 1049/2001 apply unless there is an
overriding public interest in disclosure of the documents.
We have examined whether there could be an overriding public interest in disclosure, but
we have not been able to identify such an interest, for the same reasons as above explained.
Disclosure of redacted parts of document requested No. 3.1 would also undermine the
protection of the public interest as regards public security. For similar reasons as explained
for redacted parts of documents No. 1.2, 3.1, 3.8, and for documents 2.1 and 2.2, the
exception laid down in Article 4(1) (a) first subparagraph of Regulation (EC) No 1049/2001
therefore applies to these documents.
Disclosure of redacted parts in document No. 3.7 would also undermine the protection of
the public interest as regards international relations. The message contains information that
reveal the behaviour and views of EU Member States in their coordination at the Council of
Europe, involving negotiations in the framework of an international organisation.
Establishing and protecting a sphere of mutual trust in the context of international relations
is a very delicate exercise. The disclosure of such information would undermine the mutual
trust among Member States and the Commission to explore different possibilities to ensure
the protection of the interests of the EU and its Member States..
Therefore the exception laid down in Article 4(1) third subparagraph of Regulation (EC) No
1049/2001 applies to redacted parts of these documents.
Refusal
Having examined the document No. 3.8 requested under the provisions of Regulation (EC)
No 1049/2001 regarding public access to documents, I regret to inform you that your
application cannot be granted, as disclosure is prevented by exceptions to the right of access
laid down in Article 4 of this Regulation.
Disclosure of document No. 3.8 would undermine the protection of the public interest as
regards international relations. The Commission supports the activities of the
WeProtect
Global Alliance as the entity successor to the
Global Alliance Against Child Sexual Abuse
Online, which the European Commission itself set up. The
WeProtect Global Alliance,
rallying more than 80 countries, industry and civil society organisations towards a common
set of aims, is an essential element in the international dimension of EU policies to fight
child sexual abuse online. The Commission participates in the activities of its Board as a
member. It is essential for the proper functioning of the
WeProtect Global Alliance work
that members of the board, observers and the secretariat may exchange information and
share views in matters that have an impact on the initiative’s objectives in an atmosphere of
trust and confidentiality. Disclosure of such exchanges of information and views would
breach the expectations of confidentiality among members and would deter members from
making contributions to the
WeProtect Global Alliance discussions without being unduly
influenced by the prospect of wide disclosure. This would result in a less effective
functioning of the initiative, and it would harm the external relations of the EU in the pursuit
of the EU’s policy objectives.
7
Therefore the exception laid down in Article 4(1) (a) third subparagraph of Regulation (EC)
No 1049/2001 applies to this document.
Disclosure of document No. 3.8 would also undermine the protection of the public interest
as regards public security. The document contains information about sensitive issues which
could undermine the effectiveness of the EU policies in the fight against child sexual abuse
online. The activities of the
WeProtect Global Alliance contribute to the EU’s policy goals
in this area. The public dissemination of those elements and the underlying analysis may be
used by certain actors whose cooperation is key in those policies to adopt positions that
would be detrimental to achieving effective results.
Therefore the exception laid down in Article 4(1) (a) first subparagraph of Regulation (EC)
No 1049/2001 applies to this document.
We have considered whether partial access could be granted to the document/documents
requested. However, our assessment is that it is not possible to grant access to an expunged
version of the documents, as the remaining parts after expunging the confidential
information might be meaningless or illegible.
[6]- communications between Commission officials agreeing that the view of the
Commission was that the draft Recommendation of the Council of Europe on the roles
and responsibilities of internet intermediaries was, as was apparently asserted in the
invitation to the 22nd November meeting, “in stark contrast with the EU acquis”.
It is our understanding that you seek access to communications where Commission officials
claim that 1) there was a view officially adopted by the Commission as an institution on this
matter and 2) that such view of the Commission was that the draft Recommendation was ‘
in
stark contrast with the EU acquis’.
The communications retrieved between Commission officials express the views of
individual officials in or the position of specific Commission services and make clear that
they do not constitute a formally adopted position of the Commission. We therefore regret
to inform you that the Commission does not hold any documents that would correspond to
the description given in your application.
As specified in Article 2(3) of Regulation 1049/2001, the right of access as defined in
that regulation applies only to existing documents in the possession of the institution.
Given that no such documents corresponding to the description given in your application
are held by the Commission, the Commission is not in a position to handle point 6 of
your request.
8
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:
European Commission
Secretary-General
Transparency unit SG-B-4
BERL 5/282
B-1049 Bruxelles
or by email to: xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
E-signed
Paraskevi Michou
9
Electronically signed on 09/03/2018 11:02 (UTC+01) in accordance with article 4 2 (Validity of electronic documents) of Commission Decision 2004/563