Ref. Ares(2018)4014499 - 30/07/2018
Directorate-General for Trade
The Director General
Trade (2018) 4048383
By registered letter with acknowledgment of
Mr Olivier Hoedeman
Corporate Europe Observatory (CEO)
Rue d'Edimbourg 26
Advance copy by email:
[FOI #5114 email]
Your application for access to documents – Ref GestDem No 2018/2850
Dear Mr Hoedeman,
I refer to request for access to documents under Regulation (EC) No 1049/20011
("Regulation 1049/2001"), registered for the Directorate-General for Trade (DG
TRADE) on 24 May 2018 under the reference number GestDem 2018/2850.
SCOPE OF YOUR REQUEST
In your application, you request access to
all reports (and other notes) from meetings between the European Commission
and representatives of the tobacco industry (producers, distributors, importers etc, as
well as organisations and individuals that work to further the interests of the tobacco
industry), since January 1st 2017.
- all correspondence (including emails) between the European Commission and
representatives of the tobacco industry (producers, distributors, importers etc. as well as
organisations and individuals that work to further the interests of the tobacco industry),
since January 1st 2017.
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.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 229 11111
- a list of all the above-mentioned documents (including dates, names of
participants/senders/recipients and their affiliation, subject of meeting/correspondence).
We have identified 20 documents (14 main documents and six annexes), falling under the
scope of your request. We enclose for ease of reference a list of these documents in
Annex I. For each of them, the list provides a description and indicates whether parts are
withheld and if so, under which ground pursuant to Regulation 1049/2001. Copies of the
accessible documents are enclosed.
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 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 poses 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
Articles 4(2) and 4(3) of Regulation 1049/2001, the institution is required "to ascertain
whether there is any overriding public interest justifying disclosure"
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"
Having examined the documents in light of the applicable legal framework, I am pleased to
inform you that full access is granted to five documents
(1a, 1b, 3a, 8a and 8b) and partial
access is granted to 14 documents
(1, 2, 3, 4, 5, 6, 7, 8, 9, 10 11, 12, 13 and 14).
In particular, in documents 1, 2, 3, 4, 5, 6, 8, 11, 12, 13 and 14 only personal data have
been redacted, pursuant to article 4(1)(b) of Regulation 1049/2001 and in accordance
with Regulation (EC) No 45/2001 ("Regulation 45/2001")6.
In documents 7, 9 and 10 in addition to personal data protected under article 4(1)(b) of
Regulation 1049/2001, additional information was redacted in accordance with article
4(1)(a) third indent (protection of the public interest as regards international relations) and
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.
paragraphs 37-43. See also judgment in Council v Sophie in’t Veld
, C-350/12 P, EU:C:2014:2039,
paragraphs 52 and 64.
Regulation (EC) No 1049/2001, recital (4).
Judgment in Sweden v Commission,
C-64/05 P, EU:C:2007:802, paragraph 66.
Regulation (EC) No 45/2001 of the European Parliament and the 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, OJ L 8, 12.1.2001, p. 1.
article 4(2) first indent (protection of the commercial interests of a natural or legal person)
of Regulation 1049/2001.
I regret to inform you that access cannot be granted
to document 12a, in accordance with
article 4(1)(a) third indent and article 4(2) first indent of Regulation 1049/2001.
Please note that those parts not falling within the scope of your request have been clearly
marked as out of the scope.
The reasons justifying the application of the exceptions are set out below in Sections 2.1,
2.2 and 2.3. Section 3 contains an assessment of whether there exists an overriding public
interest in the disclosure.
Protection of international relations
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 No 1049/2001, combined with the fact
that access must be refused by the institution, under that provision, if disclosure of a
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
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"
Certain passages in documents 7, 9 and 10 have been redacted and the entire document
12a has been withheld, as their disclosure would reveal the external stakeholders’ main
business concerns, strategic interests, priorities and their internal assessment and input for
the negotiations with Mexico and Mercosur. As such, this information indirectly reveals
negotiating priorities, strategic objectives and tactics which the EU could consider pursuing
in its trade negotiations.
The above-mentioned information was in general meant for internal use as a basis to
establish EU positions, strategies, objectives and way forward on specific aspects of the
negotiations with Mexico and Mercosur.
Indeed, the success of trade negotiations depends to a large extent on the protection of
objectives, tactics and fall-back positions of the parties involved. In order to ensure the
best possible outcome in the public interest, the EU needs to retain a certain margin of
manoeuvre to shape and adjust its tactics, options and positions in function of how the
7 Judgment in Sison v Council,
C-266/05 P, EU:C:2007:75, paragraph 36.
8 Judgment in Council v Sophie in’t Veld
, C-350/12 P, EU:C:2014:2039, paragraph 63.
discussions evolve in its trade negotiations. Exposing internal views and considerations
would weaken the negotiating capacity of the EU, reduce its margin of manoeuvre and be
exploited by our trading partner to obtain specific results, thereby undermining the
strategic interests of the EU and consequently, the protection of the public interest as
regards international relations.
Against this background, if this specific information submitted by these external
stakeholders to the European Commission would be released, there would be a clear and
non-hypothetical risk that external stakeholders would not provide similar information to
the European Commission in the future. This means that the European Commission
would be deprived of the possibility to obtain precise and relevant information allowing
it to objectively assess its negotiating options. The negotiation power of the European
Commission would consequently be affected and its position in the negotiations
weakened, which in turn would damage the protection of the public interest as regards
Protection of privacy and integrity of the individual
Article 4(1)(b) of Regulation 1049/2001 provides that “[t]he institutions shall refuse
access to a document where disclosure would undermine the protection of: […] privacy
and the integrity of the individual, in particular in accordance with Community
legislation regarding the protection of personal data."
The Court of Justice has ruled that "where an application based on Regulation 1049/2001
seeks to obtain access to documents containing personal data" "the provisions of
Regulation 45/2001, of which Articles 8(b) and 18 constitute essential provisions, become
applicable in their entirety".
Article 2(a) of Regulation 45/2001 provides that "'personal data' shall mean any
information relating to an identified or identifiable natural person […]"
. The Court of
Justice has confirmed that "there is no reason of principle to justify excluding activities of a
professional […] nature from the notion of 'private life'"
10 and that "surnames and
forenames may be regarded as personal data"
,11 including names of the staff of the
According to Article 8(b) of this Regulation, personal data shall only be transferred to
recipients if they establish "the necessity of having the data transferred"
and additionally "if there is no reason to assume that the legitimate interests of the data subjects might be
9 Judgment in Guido Strack v Commission,
EU:C:2014:2250, paragraph 101; see also
judgment in Commission v Bavarian Lager,
C-28/08 P, EU:C:2010:378, paragraphs 63 and 64.
10 Judgment in Rechnungshof v Rundfunk and Others
, Joined cases C-465/00, C-138/01 and C-139/01,
EU:C:2003:294, paragraph 73.
11 Judgment in Commission v Bavarian Lager,
C-28/08 P, EU:C:2010:378, paragraph 68.
12 Judgment in Guido Strack v Commission,
EU:C:2014:2250, paragraph 111.
. The Court of Justice has clarified that "it is for the person applying for access
to establish the necessity of transferring that data".
All documents –except 12a, contain names and other personal information that allows the
identification of natural persons.
I note that you have not established the necessity of having these personal data
transferred to you. Moreover, it cannot be assumed, on the basis of the information
available, that disclosure of such personal data would not prejudice the legitimate
interests of the persons concerned. Therefore, these personal data shall remain
undisclosed in order to ensure the protection of the privacy and integrity of the
However, please note that the names of representatives of the companies occupying
senior management positions are disclosed.
Protection of commercial interests
Article 4(2) first indent of Regulation 1049/2001 provides that “[t]he institutions shall
refuse access to a document where disclosure would undermine the protection of: […]
commercial interests of a natural or legal person, including intellectual property […]
unless there is an overriding public interest in disclosure"
Certain passages in documents 7, 9 and 10 have been redacted and the entire document
12a has been withheld because their disclosure would reveal specific views, concerns and
interests of different stakeholders regarding negotiations with Mexico and Mercosur.
They contain commercial priorities, strategies and concerns these stakeholder have.
There is a reasonably foreseeable risk that the public disclosure of this information would
harm the commercial interests of the entities and companies concerned, as it could be
exploited by competitors to undermine their competitive positions in third countries and
their relationship with the other economic operators in such markets.
All this information was shared with the Commission in order to provide useful input and
support for the EU’s objectives in its trade negotiations with Mexico and Mercosur.
Economic operators typically share information with the Commission so that the latter
can determine how to best position itself in the negotiations in order to protect its
strategic interests and those of its industry, workers and citizens. Ensuring that the
Commission continues to receive access to this information and that the industry engages
in open and frank discussions with the Commission, are key elements for the success of
the internal and external policies of the EU and its international negotiations. Bringing in
the public domain specific business related information that companies share with the
Commission may prevent the Commission from receiving access to such information in
13 Judgment in C-127/13 P Guido Strack v Commission,
EU:C:2014:2250, paragraph 107 and judgment
in C-28/08 P Commission v Bavarian Lager,
EU:C:2010:378, paragraph 77.
OVERRIDING PUBLIC INTEREST
The exception laid down in Article 4(2) first indent of Regulation 1049/2001 applies unless
there is an overriding public interest in disclosure of the documents. Such an interest must,
first, be public and, secondly, outweigh the harm caused by disclosure.
Accordingly, we have also considered whether the risks attached to the release of the
protected passages and documents are outweighed by the public interest in accessing the
requested documents. We have not been able to identify any such public interest capable of
overriding the commercial interests of the companies concerned. The public interest in this
specific case rather lies on the protection of the legitimate confidentiality interests of the
stakeholders concerned to ensure that the Commission continues to receive useful
contributions for its negotiations with its trading partners.
Pursuant to Article 4(6) of Regulation 1049/2001 "[i]f only parts of the requested
document are covered by any of the exceptions, the remaining parts of the document
shall be released"
. Accordingly, we have also considered whether partial access can be
granted to document 12a.
After a careful review, we have concluded that it is entirely covered by the exceptions
described above as it is impossible to disclose any parts of this document without
undermining the protection of the interests identified in this reply.
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:
Transparency unit SG-B-4
or by email to: [DG SG request email]
Electronically signed on 30/07/2018 11:17 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563