Ref. Ares(2020)5931722 - 26/10/2020
EUROPEAN COMMISSION
Brussels, 11.7.2019
C(2019) 5387 final
2273KK Voorburg
Netherlands
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2019/573
Dear
I refer to your letter of 15 March 2019, registered on the same day, 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 ‘Regulation (EC) No 1049/2001’).
1.
SCOPE OF YOUR REQUEST
In your initial application of 30 January 2019, addressed to the Directorate-General for
Neighbourhood and Enlargement Negotiations, which you further clarified on
20 February 2019, you requested access to:
“All documents related to the contract ‘Consolidation of the Justice System in Albania’
(EURALIUS V), including, but not limited to:
- Contract between the European Commission and the consortium implementing
EURALIUS V, including the Annexes: General Conditions, Description of the
Action, Standard Operating Procedures, etc.
- All reports provided by the EURALIUS mission to the EU Delegation in Tirana
and/or the European Commission: Inception Report, Monthly Reports, etc.”
1
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 22991111
The European Commission has identified the following documents as falling under the
scope of your request:
Grant Contract 2018/395-806 ‘Consolidation of the Justice System in
Albania’ (EURALIUS V), reference Ares(2019)542956, which includes
the following annexes:
o
Special conditions (hereafter ‘document 1’);
o
Annex I: Description of the Action (including the Logical
Framework of the Project and Concept Note (hereafter ‘document
2’);
o
Annex II: General Conditions applicable to European Union-
financed grant contracts for External Actions (hereafter ‘document
3’);
o
Annex III: Budget for the Action (hereafter ‘document 4’);
o
Annex IV: Procurement rules for beneficiaries (hereafter
‘document 5’);
o
Annex V: Standard request for payment and financial identification
form (hereafter ‘document 6’);
o
Annex VI: Model narrative and financial report (hereafter
‘document 7’);
o
Annex VII: Terms of reference for an expenditure verification of a
Union financed grant contract for external actions and model report
of factual findings (hereafter ‘document 8);3
o
Annex IX: Standard template for Transfer of Asset Ownership
(hereafter ‘document 9’);
Weekly reports: 40 reports (hereafter ‘document 10’)4;
Monthly reports: 10 reports (hereafter ‘document 11’);
Inception report, reference Ares(2019)3246826 (hereafter ‘document 12’),
which includes five annexes:
o
Annex 1 - Draft Regulation General meeting of judges on the
election
of
high
judicial
council
members
(hereafter
‘document 12.1’);
o
Annex 2 - Information on CoM Decision on IT Structures of
Courts and Prosecution (hereafter ‘document 12.2’);
o
Annex 3 - Recommendations ITC Structure in Justice System and
other Regulatory Matters (hereafter ‘document 12.3’);
o
Annex 4 - Scheme of IT Structures of the Justice System (hereafter
‘document 12.4’);
3 Please note that Annex VIII: Model financial guarantee was not applicable for this grant.
4 The reference numbers for the weekly and monthly reports can be found in Annex 1.
2
o
Annex 5 - Monitoring Report on Proficiency Testing of Certain
Assesses (hereafter ‘document 12.5’);
Progress report, reference Ares(2019)3252835 (hereafter ‘document 13’).
In its initial reply of 15 March 2019, Directorate-General for Neighbourhood and
Enlargement Negotiations:
granted full access to documents 3 and 5 – 9;
refused access to documents 1, 2, 4 and 10 – 13 based on the exceptions of Article
4(1)(a) (protection of public interest as regards international relations) and
Article 4(2), first indent (protection of commercial interests) of Regulation (EC)
No 1049/2001.
In your confirmatory application, you request a review of this position with regards to
documents 1, 2 and 12. The scope of this confirmatory decision is therefore limited only
to the above-mentioned documents. You underpin your request with detailed arguments,
which I will address in the corresponding sections below.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation (EC) No 1049/2001, the Secretariat-General conducts a fresh review of the
reply given by the Directorate-General concerned at the initial stage.
Since the documents originate from a third party, the Secretariat-General consulted the
EURALIUS consortium coordinator in accordance with Article 4(4) of Regulation (EC)
No 1049/2001 with a view to assessing whether an exception in paragraph 1 or 2 of
Article 4 of Regulation (EC) No 1049/2001 could be applicable. In their reply to the
consultation, EURALIUS agreed to the partial disclosure of documents 1 and 12 based
on the exceptions of Article 4(1)(a) (protection of public interest as regards international
relations) and Article 4(2), second indent (protection of legal advice) of Regulation (EC)
No 1049/2001.
Following this review and after taking into account the result of the consultation, I can
inform you that:
– partial access is granted to documents 1 and 12.
With regard documents 2, I regret to inform you that I have to confirm the initial decision
of Directorate-General for Neighbourhood and Enlargement Negotiations to refuse
access, based on the exceptions of Article 4(1)(b) (protection of privacy and the integrity
of the individual) and Article 4(2), first indent (protection of commercial interests) of
Regulation (EC) No 1049/2001,
With regard to the redacted parts of document 1, they are covered by the exceptions of
Article 4(1)(b) (protection of privacy and the integrity of the individual) and Article 4(2),
first indent (protection of commercial interests) of Regulation (EC) No 1049/2001.
3
With regard to documents 12, 12.1, 12.2, 12.3, 12.4 and 12.5, the redacted parts are
covered by the exceptions of Article 4(1)(a) (protection of public interest as regards
international relations) Article 4(1)(b) (protection of privacy and the integrity of the
individual) and Article 4(2), second indent (protection of legal advice) of Regulation
(EC) No 1049/2001, for the reasons set out below.
2.1. Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation (EC) No 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’.
In its judgment in Case C-28/08 P
(Bavarian Lager)5, the Court of Justice ruled that
when a request is made for access to documents containing personal data, 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 data6
(hereafter ‘Regulation (EC) No 45/2001’) becomes fully applicable.
Please note that, as from 11 December 2018, Regulation (EC) No 45/2001 has been
repealed by Regulation (EU) 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/EC7 (hereafter ‘Regulation (EU) 2018/1725’).
However, the case law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) 2018/1725.
In the above-mentioned judgment, the Court stated that Article 4(1)(b) of Regulation
(EC) No 1049/2001 ‘requires that any undermining of privacy and the integrity of the
individual must always be examined and assessed in conformity with the legislation of
the Union concerning the protection of personal data, and in particular with […] [the
Data Protection] Regulation’.8
Article 3(1) of Regulation (EU) 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
5 Judgment of the Court of Justice of 29 June 2010,
European Commission v The Bavarian Lager Co.
Ltd (hereafter referred to as
‘European Commission v The Bavarian Lager’) C-28/08 P,
EU:C:2010:378, paragraph 59.
6 Official Journal L 8 of 12.1.2001, page 1.
7 Official Journal L 205 of 21.11.2018, p. 39.
8 Judgment in
European Commission v The Bavarian Lager,
cited
above, paragraph 59.
4
As the Court of Justice confirmed in Case C-465/00 (
Rechnungshof), ‘there is no reason
of principle to justify excluding activities of a professional […] nature from the notion of
private life’.9
Documents 1, 12 and 12.1 contain personal data such as the names and initials of persons
who do not form part of the senior management of the European Commission and names
of representatives of third parties. Moreover, it contains a handwritten signature.
The names10 of the persons concerned as well as other data from which their identity can
be deduced undoubtedly constitute personal data in the meaning of Article 3(1) of
Regulation (EU) 2018/1725.
Pursuant to Article 9(1)(b) of Regulation (EU) 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 (EU) 2018/1725, can the
transmission of personal data occur.
In Case C-615/13 P
(
ClientEarth), the Court of Justice ruled that the institution does not
have to examine by itself the existence of a need for transferring personal data.11 This is
also clear from Article 9(1)(b) of Regulation (EU) 2018/1725, which requires that the
necessity to have the personal data transmitted must be established by the recipient.
According to Article 9(1)(b) of Regulation (EU) 2018/1725, the European Commission
has to examine the further conditions for the lawful processing of personal data only if
the first condition is fulfilled, namely if the recipient establishes 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 confirmatory 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 subjects’ legitimate interests might be prejudiced.
9 Judgment of the Court of Justice of 20 May 2003,
Rechnungshof and Others v Österreichischer
Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
10 Judgment in
European Commission v The Bavarian Lager,
cited
above, paragraph 68.
11 Judgment of the Court of Justice of 16 July 2015,
ClientEarth v European Food Safety Agency,
C-615/13 P, EU:C:2015:489, paragraph 47.
5
Notwithstanding the above, there are reasons to assume that the legitimate interests of the
data subjects concerned would be prejudiced by the 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.
As to the handwritten signatures appearing in document 1, which constitute biometric data,
there is a risk that their disclosure would prejudice the legitimate interest of the person
concerned.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data included in document 1, 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 the disclosure of the personal data concerned.
2.2. Protection of the public interest as regards international relations
Article 4(1)(a), third indent, of Regulation (EC) No 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’.
With regard to this provision, the Court of Justice has acknowledged in
In’t Veld judgment that the institutions enjoy ‘a wide discretion for the purpose of determining
whether the disclosure of documents relating to the fields covered by those exceptions
could undermine the public interest’. 12
Albania is a candidate country to the European Union following the European Council
conclusions of June 2014. As a candidate country, Albania is actively engaged in
carrying out various reforms in order to achieve the standards required for European
Union membership.
In this context, the European Commission awarded grant contracts to support actions
which focus on supporting the Albanian institutions to consolidate their justice system
following a comprehensive justice reform. A justice reform is a key criterion in the
accession negotiations, stressed by the Council of the European Union in the conclusions
of the General Affairs Council of 26 June 2018 on Enlargement and Stabilisation and
Association Process13. The justice reform is at a critical phase of implementation. Its
objective to fight corruption and depoliticise the justice system is by its very nature of
high sensitiveness both at national and European level.
The inception report and its annexes (documents 12, 12.1, 12.2, 12.3, 12.4 and 12.5) were
prepared by the consortium awarded the grant for ‘Consolidation of the Justice System in
Albania (EURALIUS V)’. The inception report and its annexes contain analyses of
ongoing issues on various levels of the justice reform design and implementation. They
12 Judgment of the Court of Justice of 3 July 2014,
Council v in 't Veld, C‑ 350/12 P, EU:C:2014:2039,
paragraph 63.
13 https://www.consilium.europa.eu/media/35863/st10555-en18.pdf
6
describe various issues related to the justice system and propose actions, activities and
steps to be taken in that regard. Some of the actions proposed are still ongoing and
remain to be implemented. Other suggestions proposed by EURALIUS were not
retained, as the final decision on any justice reform is reserved to the Albanian
authorities, who need to be able to deliberate free from external pressure and criticism.
Public disclosure of the withheld parts of the EURALIUS report would be perceived by
the Albanian authorities not only as a breach of trust but also as an action undermining
their authority to take the final decision on the justice reform. In this context, it is to be
underlined that EURALIUS, which is in constant contact with the Albanian authorities,
repeatedly opposed disclosure of the withheld parts.14 The General Court has
acknowledged that ‘the way in which the authorities of a third country perceive the
decisions of the European Union is a component of the relations established with that
third country.15
Were the Commission to provide public access to the withheld parts, the environment of
mutual trust necessary for shedding light on aspects which could be improved, thus
supporting the justice reform, would be negatively affected. 16
In this case, public disclosure would undermine the effectiveness of the EU action
regarding the implementation of the reform efforts, would negatively affect the European
Union’s relations with Albania and undermine the mutual trust, which is paramount for
the ongoing accession negotiations.
Therefore, access to part of the requested documents would undermine the protection of
public interest as regards international relations protected by Article 4(1)(a), third indent,
of Regulation (EC) No 1049/2001, and that access has to be refused on that basis.
2.3. Protection of commercial interests, including intellectual property
Article 4(2), first indent of Regulation (EC) No 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’.
Document 1 contains the VAT number of the contracting entities that form the
EURALIUS consortium. This constitutes sensitive commercial information, the
disclosure would undermine contractual interests of the contractors.
Document 2 forms part of the grant application and contains the Description of the
action, including the Logical framework for the project of the grant beneficiary submitted
under call for proposals EuropeAid/155321/DD/ACT/AL – ‘Consolidation of the Justice
System in Albania (EURALIUS V)’. It contains the intervention strategy of the proposed
14 Judgment of the General Court of 12 May 2015,
Jurašinović v Council, T-658/14, EU:T:2015:766,
paragraph 35.
15 Judgment of the General Court of 27 February 2018,
CEE Bankwatch Network v European
Commission, T-307/16, EU:T:2018:97, paragraph 90.
16 Judgment of the General Court of 11 July 2018,
ClientEarth v Commission, T-644/16, EU:T:2018:429,
paragraph 47.
7
actions, overall and specific objectives, objectively verifiable indicators of achievement,
as well as the sources and means to be deployed to achieve these objectives. It includes
details on the envisaged activities, the proposed methodology, the costs involved for the
proposed actions and other information related to operational aspects of the
implementation of the proposed action, such as the necessary pre-conditions.
All this information reflects the specific know-how and experience of the grant applicant.
That know-how was taken into account by the Commission when evaluating the
applications submitted under the call for proposals organised for the grant in question. It
contributed to the attractiveness of the funding application of the grant applicant, which
became beneficiary of the grant. This information had a major impact on selection of the
applications of the beneficiary from among other ones submitted under the above call.
Therefore, public disclosure of such information would undermine the commercial
interests of grant applicant, as it would give other potential grant applicants in future calls
the possibility to copy from that application and use it to support their own application.
The General Court ruled that ‘methodology and expertise […] highlighted as part of the
grant application, […] relate to the specific know-how […] and contribute to the
uniqueness and attractiveness of applications in the context of calls for proposals such as
that at issue, which was intended to select one or more applications, following in
particular a comparative review of proposed projects. Thus, particularly given the
competitive environment in which [the applicants for a grant] operate, it is necessary to
consider that the information in question is confidential’
.17
Furthermore, the General Court in its judgement of 29 January 2013 in Case T-339/10,
Cosepuri v EFSA18, ruled that ‘[i]t follows from all the foregoing that EFSA did not err
in considering, in essence, that there was a general presumption that access to the bids
submitted by the other tenderers would, in principle, undermine the interest protected.
The applicant has not put forward any evidence to justify the conclusion that, in the
present case, that presumption did not apply to the documents disclosure of which was
requested.’ This general presumption of non-disclosure of the bids submitted by a
tenderer applies, by analogy, to grant applications.
You argue that similar documents have been, partly of fully, disclosed in the past.
However, each request needs to be assessed on its own merits and on the basis of the
context at that specific time, which explains the assessment made in this case for the
reasons explained above.
In consequence, in this case, there is a real and non-hypothetical risk that public access to
the above-mentioned information would undermine the commercial interests, including
intellectual property, of the grant applicant.
17 Judgment of the General Court of 21 October 2010,
Agapiou Joséphidès v Commission & EACEA,
T-439/08, EU:T:2010:442, paragraph 127.
18 Judgment of the General Court of 29 January 2013,
Cosepuri v EFSA, T-339/10, EU:T:2013:38,
paragraph 101.
8
I conclude, therefore, that access to document 2 and parts of document 1 have to be
refused on the basis of the exception laid down in the first indent of Article 4(2)
(protection of commercial interests, including intellectual property) of Regulation (EC)
No 1049/2001.
2.4. Protection of legal advice and court proceedings
Article 4(2), second indent of Regulation (EC) No 1049/2001 provides that ‘[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of: […] court proceedings and legal advice.’
In its judgement in Case T-84/03, the Court of First Instance19 underlined that the
exception provided for in Article 4(2), second indent protects two distinct interests: court
proceedings and legal advice20. In the case at hand, the refusal of access to the documents
concerned is based on a need to protect legal advice.
It needs to be recalled that the concept of the ‘legal advice’, as well as the applicability of
the exception protecting it, was interpreted by the case law of EU Court. Indeed, in its
judgment in Case T-755/14, the General Court took the position that legal advice is
‘advice relating to a legal issue, regardless of the way in which that advice is given’21.
In the above-mentioned judgment, the General Court also explicitly underlined that
ʻit is
irrelevant, for the purposes of applying the exception relating to the protection of legal
advice, whether the document containing that advice was provided at an early, late or
final stage of the decision-making process’22
. Furthermore, according to General Court's
reasoning ‘there is nothing in the wording of the second indent of Article 4(2) of
Regulation No 1049/2001 to support the conclusion that that provision concerns only
advice provided or received internally by an institution’.23
The inception report and annexes 1 – 5 include analysis and legal opinions in matters of a
sensitive nature that were being analysed and proposed to the Albanian authorities in the
context of the grant for ‘Consolidation of the Justice System in Albania (EURALIUS
V)’. They were addressed to the European Commission and to the beneficiary of the
project – the Albanian authorities - for their internal use and consideration, and was not
intended to be shared in public. Part of the role of EURALIUS is to provide legal advice
on ongoing legislative and legal interpretation issues with the view to allow the Albanian
authorities to have an overview of the issues related to the justice reform, so as to enable
them to evaluate the advice provided by EURALIUS and finally take the necessary
decisions relating to the justice reform. For this process to be effective, it is therefore
19 Currently: the General Court.
20 Judgment of the Court of first Instance of 23 November 2004,
Turco v Council, T-84/03,
EU:T:2004:339, paragraph 65.
21 Judgment of the General Court of 15 September 2016,
Herbert Smith Freehills v Commission,
T-755/14, EU:T:2016:482, paragraph 47.
22 Judgment in
Herbert Smith Freehills v Commission, cited above
.
23 Judgment in
Herbert Smith Freehills v Commission, cited above, paragraph 48.
9
essential that both EURALIUS and the EU maintains a constant, frank and open
dialogue, based on trust, with the stakeholders and the Albanian authorities.
Disclosure of the requested document would clearly have a serious impact, both on the
EURALIUS consortium’s capacity to assist the Albanian authorities and the European
Commission in this and future matters, and on the Albanian authorities’ interest in
seeking and receiving frank and objective advice from the EURALIUS consortium. The
EURALIUS consortium and the Albanian authorities would be exposed to undue
external pressure in case of its premature disclosure.
In light of the above, access to part of the inception report and its annexes 1 – 5 must be
denied on the basis of the exception laid down in Article 4(2), second indent of
Regulation (EC) No 1049/2001.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(2), first indent (protection of commercial interests,
including intellectual property) and Article 4(2), second indent (protection of legal advice
and court proceedings) of Regulation (EC) No 1049/2001 must be waived if there is an
overriding public interest in disclosure. Such an interest must, firstly, be public and,
secondly, outweigh the harm caused by disclosure.
In your confirmatory application, you do not put forward any reasoning pointing to an
overriding public interest in disclosing the documents requested.
Nor have I been able to identify any public interest capable of overriding the public and
private interests protected by Article 4(2), first and second indent of Regulation (EC) No
1049/2001.
Please note also that Article 4(1)(a) and 4(1)(b) of Regulation (EC) No 1049/2001 do not
include the possibility for the exceptions defined therein to be set aside by an overriding
public interest.
Moreover, I would like to draw your attention that several documents, including the
templates
used
for
the
grant
application,
are
publicly
available
here:
https://webgate.ec.europa.eu/europeaid/online-
services/index.cfm?ADSSChck=1556638377214&do=publi.detPUB&searchtype=AS&z
geo=35357&aoet=36537&ccnt=7573876&debpub=29%2F04%2F2013&orderby=ctr&or
derbyad=Asc&nbPubliList=25&page=1&aoref=155321.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting (further) partial access to the documents requested.
As explained above, partial access is granted to documents 1 and 12.
10