C(2019) 4538 final
Ms Josefina Marti
Calle Juan Bravo 62
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject: Your confirmatory applications for access to documents under Regulation
(EC) No 1049/2001 – GESTDEM 2019/2053
Dear Ms Marti,
I refer to your email of 26 April 2019, registered on 26 April 2019, in which you submit a
confirmatory application in accordance with Article 7(2) of Regulation (EC) No 1049/2001
regarding public access to European Parliament, Council and Commission documents2
(hereafter ʻRegulation (EC) No 1049/2001ʼ).
On 2 April 2019, you submitted an initial application for access to documents under
Regulation (EC) No 1049/2001 to the Directorate-General for Financial Stability, Financial
Services and Capital Markets Union, in which you requested access to:
ʻa complete list of all meetings held by any member of your team/staff with
churches, religious associations or communities, as well as with philosophical and
non-confessional organisations, from 1 January 2014 onwards, specifying the status
of the organization (church, religious association or community, philosophical
association or non-confessional association);
All documents, including e-mails, minutes, reports or other documents received or
drawn up before, during or after the meetings, and any other briefing papers related
to these meetings.ʼ.
This application was registered under reference number GESTDEM 2019/2053.
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 229 91111
By e-mails of 8 April and 26 April 2019, the Directorate-General for Financial Stability,
Financial Services and Capital Markets Union sent you two clarification requests and asked
you to provide more detailed information that could facilitate the search for the requested
documents, based on Article 6(2) of Regulation (EC) No 1049/2001. Nonetheless, no
clarification was received from you and you submitted a confirmatory application to the
Against this background, the European Commission has carried out a renewed, thorough
search for meetings and documents that would fall within the scope of your confirmatory
application as described above.
Following this renewed search, I confirm that the European Commission does not hold any
documents that would correspond to the description given in your application.
Indeed, as specified in Article 2(3) of Regulation (EC) No 1049/2001, the right of access as
defined in that regulation applies only to existing documents in the possession of the
institution. I would like to refer in this respect to the judgment of the Court of Justice in
Case C-127/13 P (Strack v European Commission
), according to which ‘[n]either Article 11
of Regulation 1049/2001 nor the obligation of assistance in Article 6(2) thereof, can oblige
an institution to create a document for which it has been asked to grant access but which
does not exist’.3
The above-mentioned conclusion has been confirmed in Case C-491/15 P
(Typke v European Commission
), where the Court of Justice held that ‘the right of access to
documents of the institutions applies only to existing documents in the possession of the
institution concerned and […] Regulation No 1049/2001 may not be relied upon to oblige
an institution to create a document which does not exist. It follows that […] an application
for access that would require the Commission to create a new document, even if that
document were based on information already appearing in existing documents held by it,
falls outside the framework of Regulation No 1049/2001’.4
Furthermore, the General Court held in Case T-468/16 (Verein Deutsche Sprache v
that there exists a presumption of lawfulness attached to the
declaration by the institution asserting that documents do not exist.5 This presumption
continues to apply, unless the applicant can rebut it by relevant and consistent evidence.6
The Court of Justice, ruling on an appeal in Case C-440/18 P, has recently confirmed these
3 Judgment of the Court of Justice of 2 October 2014, Strack v European Commission
, C-127/13 P,
EU:C:2014:2250, paragraph 46.
4 Judgment of the Court of Justice of 11 January 2017, Typke v European Commission, C-491/15 P,
EU:C:2017:5, paragraph 31.
Judgment of the General Court of 23 April 2018, Verein Deutsche Sprache v European Commission
EU:T:2018:207, paragraphs 35-36.
Order of the Court of Justice of 30 January 2019, Verein Deutsche Sprache v Commission
, C-440/18 P,
EU:C:2019:77, paragraph 14.
Given that the European Commission does not hold any documents corresponding to the
description given in your application, it is not in a position to fulfil your request.
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
European Ombudsman under the conditions specified respectively in Articles 263 and 228
of the Treaty on the Functioning of the European Union.
For the Commission