Ref. Ares(2021)352218 - 15/01/2021
EUROPEAN COMMISSION
Brussels, 5.12.2019
C(2019) 8860 final
Steptoe & Johnson
Avenue Louise 489 3rd Floor, 1050
Brussels
Belgium
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/2001 1
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2019/3443 to 2019/3445,
2019/3472 to 2019/3478, 2019/3480 to 2019/3488, 2019/3536 to
2019/3544 and 2019/3547 to 2019/3548
Dear
,
I refer to your letter of 27 August 2019, registered on the next day, in which you
submitted a confirmatory application in accordance with Article 7(2) of Regulation (EC)
No 1049/2001 regarding public access to European Parliament, Council and Commission
documents 2 (hereafter ‘Regulation (EC) No 1049/2001’). Your confirmatory application
concerns your initial applications registered under reference GESTDEM 2019/3443 to
2019/3445, 2019/3472 to 2019/3478, 2019/3480 to 2019/3488, 2019/3536 to 2019/3544
and 2019/3547 to 2019/3548.
1.
SCOPE OF YOUR REQUEST
In your initial applications of 17, 18 and 19 June 2019, addressed to the Directorate-
General for Trade, you requested access to the following documents whose details were
published in the Comitology Register 3:
1. ‘S034294 – Summary record – Trade Defence Instruments Committee meeting on
12 March 2014 4, (hereafter ‘document 1);
1
OJ L 345, 29.12.2001, p. 94.
2
OJ L 145, 31.5.2001, p. 43.
3 https://ec.europa.eu/transparency/regcomitology/index.cfm.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
2. S034295 – Summary record – Trade Defence Instruments Committee meeting on
9 April 2014 5, (hereafter ‘document 2’);
3. S061784 – Summary record – Trade Defence Instruments Committee meeting on
27 March 2019 6, (hereafter ‘document 3’);
4. S060910 – Summary record – Trade Defence Instruments Committee meeting on
30 January 2019 7, (hereafter ‘document 4’);
5. S060642 – Summary record – Trade Defence Instruments Committee meeting on
18 December 2018 8, (hereafter ‘document 5’);
6. S059646 – Summary record – Trade Defence Instruments Committee meeting on
22 October 2018 9, (hereafter ‘document 6’);
7. S059542 – Summary record – Trade Defence Instruments Committee meeting on
3 October 2018 10, (hereafter ‘document 7’);
8. S058862 – Summary record – Trade Defence Instruments Committee meeting on
11 September 2018 11, (hereafter ‘document 8’);
9. S058312 – Summary record – Trade Defence Instruments Committee meeting on
21 August 2018 12, (hereafter ‘document 9’);
10. S058271 – Summary record – Trade Defence Instruments Committee meeting on
26 July 2018 13, (hereafter ‘document 10’);
11. S057996 – Summary record – Trade Defence Instruments Committee meeting on
5 July 2018 14, (hereafter ‘document 11’);
12. S057454 – Summary record – Trade Defence Instruments Committee meeting on
14 June 2018 15, (hereafter ‘document 12’);
13. S057260 – Summary record – Trade Defence Instruments Committee meeting on
25 April 2018 16, (hereafter ‘document 13’);
14. S056950 – Summary record – Trade Defence Instruments Committee meeting on
17 May 2018 17, (hereafter ‘document 14’);
15. S056163 – Summary record – Trade Defence Instruments Committee meeting on
22 March 2018 18, (hereafter ‘document 15’);
16. S055515 – Summary record – Trade Defence Instruments Committee meeting on
8 February 2018 19, (hereafter ‘document 16’);
4 As you submitted two applications for this document, your first application was registered under
reference number GESTDEM 2019/3443 and the second one under reference number GESTDEM
2019/3445.
5 This application was registered under reference number GESTDEM 2019/3444.
6 This application was registered under reference number GESTDEM 2019/3472.
7 This application was registered under reference number GESTDEM 2019/3473.
8 This application was registered under reference number GESTDEM 2019/3474.
9 This application was registered under reference number GESTDEM 2019/3476.
10 This application was registered under reference number GESTDEM 2019/3477.
11 This application was registered under reference number GESTDEM 2019/3478.
12 This application was registered under reference number GESTDEM 2019/3480.
13 This application was registered under reference number GESTDEM 2019/3481.
14 This application was registered under reference number GESTDEM 2019/3482.
15 This application was registered under reference number GESTDEM 2019/3483.
16 This application was registered under reference number GESTDEM 2019/3484.
17 This application was registered under reference number GESTDEM 2019/3485.
18 This application was registered under reference number GESTDEM 2019/3486.
19 This application was registered under reference number GESTDEM 2019/3487.
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17. S055512 – Summary record – Trade Defence Instruments Committee meeting on
11 January 2018 20, (hereafter ‘document 17’);
18. S055048 – Summary record – Trade Defence Instruments Committee meeting on
13 December 2017 21, (hereafter ‘document 18’);
19. S054515 – Summary record – Trade Defence Instruments Committee meeting on
15 November 2017 22, (hereafter ‘document 19’);
20. S054465 – Summary record – Trade Defence Instruments Committee meeting on
19 October 2017 23, (hereafter ‘document 20’);
21. S054133 – Summary record – Trade Defence Instruments Committee meeting on
5 October 2017 24, (hereafter ‘document 21’);
22. S053299 – Summary record – Trade Defence Instruments Committee meeting on
7 September 2017 25, (hereafter ‘document 22’);
23. S053296 – Summary record – Trade Defence Instruments Committee meeting on
27 July 2017 26, (hereafter ‘document 23’);
24. S052215 – Summary record – Trade Defence Instruments Committee meeting on
15 June 2017 27, (hereafter ‘document 24’);
25. S051660 – Summary record – Trade Defence Instruments Committee meeting on
17 May 2017 28, (hereafter ‘document 25’);
26. S051469 – Summary record – Trade Defence Instruments Committee meeting on
6 April 2017 29, (hereafter ‘document 26’);
27. S050884 – Summary record – Trade Defence Instruments Committee meeting on
23 March 2017 30, (hereafter ‘document 27’);
28. S050609 – Summary record – Trade Defence Instruments Committee meeting on
17 February 2017 31, (hereafter ‘document 28’); and
29. S050195 – Summary record – Trade Defence Instruments Committee meeting on
9 February 2017 32, (hereafter ‘document 29’).
In its initial reply of 6 August 2019, the Directorate-General for Trade refused access to
these documents based on the exceptions of Article 4(2), third indent (protection of the
purpose of investigations) and Article 4(3), second subparagraph (protection of the
decision-making process) of Regulation (EC) No 1049/2001.
In your confirmatory application, you request a review of this position. You underpin
your request with detailed arguments, which I will address in the corresponding sections
below.
20 This application was registered under reference number GESTDEM 2019/3488.
21 This application was registered under reference number GESTDEM 2019/3536.
22 This application was registered under reference number GESTDEM 2019/3537.
23 This application was registered under reference number GESTDEM 2019/3538.
24 This application was registered under reference number GESTDEM 2019/3539.
25 This application was registered under reference number GESTDEM 2019/3540.
26 This application was registered under reference number GESTDEM 2019/3541.
27 This application was registered under reference number GESTDEM 2019/3542.
28 This application was registered under reference number GESTDEM 2019/3543.
29 This application was registered under reference number GESTDEM 2019/3544.
30 This application was registered under reference number GESTDEM 2019/3546.
31 This application was registered under reference number GESTDEM 2019/3547.
32 This application was registered under reference number GESTDEM 2019/3548.
3
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.
Following this review, I can inform you that partial access is granted to all the requested
documents. In accordance with Article 19(5) of Regulation (EU) 2016/1036 33 (and
similarly also in accordance with Article 29(5) of Regulation (EU) 2016/1037 34), the
‘exchanges of information between the Commission and Member States shall not be
divulged except as specifically provided for in this Regulation’. To the extent that the
requested documents contain information falling within the above confidentiality
provision, they cannot be disclosed. The partial refusal is, therefore, based on the
confidentiality provisions of Regulation (EU) 2016/1036 and Regulation (EU) 2016/1037
and the exceptions of Article 4(2), third indent (protection of the purpose of
investigations) and Article 4(3), second subparagraph (protection of the decision-making
process), as well as Article 4(1)(a), third indent (protection of the public interest as
regards international relations) of Regulation (EC) No 1049/2001, for the reasons set out
below.
2.1. Protection of the purpose of the investigations and of the decision-making
process
Article 4(2), 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 purpose of inspections, investigations and audits, unless there is an
overriding public interest in disclosure.’
Article 4(3), second subparagraph of Regulation (EC) No 1049/2001 provides that
‘[a]ccess to a document containing opinions for internal use as part of deliberations and
preliminary consultations within the institution concerned shall be refused even after the
decision has been taken if disclosure of the document would seriously undermine the
institution's decision-making process, unless there is an overriding public interest in
disclosure.’
The Court of Justice stated that an institution of the European Union, when assessing a
request for access to documents held by it, may take into account more than one of the
grounds for refusal provided for in Article 4 of Regulation (EC) No 1049/2001 35.
The withheld parts of the documents are exchanges of information between the Member
States and the Commission in the context of mandatory consultations in the Trade
Defence Instruments Committee pursuant to the basic anti-dumping and anti-subsidy
regulations. These exchanges include details on the dialogue between the Commission
and the Member States, such as positions of Member States, questions, explanations
provided by the Commission, detailed voting results, as well as opinions provided by the
33 Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on
protection against dumped imports from countries not members of the European Union, OJ L 176,
30.6.2016, p. 21.
34 Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on
protection against subsidised imports from countries not members of the European Union, OJ L 176,
30.6.2016, p. 55.
35 Judgment of the Court of Justice of 28 June 2012,
European Commission v
Agrofert Holding,
C-477/10 P, EU:C:2012:394, paragraph 55.
4
Commission Legal Service in the context of these discussions. They also contain
information and details of the discussions concerning anti-dumping investigations.
Pursuant to Article 19(5) of the basic anti-dumping regulation and Article 29(5) of the
basic anti-subsidy regulation, ‘[e]xchanges of information between the Commission and
Member States, or any internal documents prepared by the authorities of the Union or the
Member States, shall not be divulged except as specifically provided for in this
Regulation.’ Therefore, any information contained in the requested document that falls
within the scope of the confidentiality provisions of the basic anti-dumping and basic
anti-subsidy regulation is redacted from the documents released.
Moreover, the withheld parts of the documents relating to anti-dumping investigations
files cannot be disclosed, as they form part of the investigation file. The Commission
considers that there is a general presumption in favour of protection of the confidentiality
of the anti-dumping investigation file, similar to the one established by the Court of
Justice in the field of anti-trust, merger, State aid and infringement investigations.
Indeed, the Commission considers that information exchanged between the Commission
and the Member States in the context of anti-dumping procedures forms part of the anti-
dumping investigation file. Its public disclosure would undermine, in principle, both the
protection of the objectives of investigation activities and that of the decision-making
process of the institution. Parts of the documents reflecting such exchanges, as the
requested summary records, contain the same type of confidential information. The
legislation, which governs anti-dumping procedures, provides for strict rules regarding
the treatment of information obtained or established in the context of such procedures.
There is no specific provision allowing the divulgation of such information to the public.
The privileged access rules of the basic anti-dumping regulation cannot in any way be
invoked as a ground for requesting public access to documents under Regulation (EC) No
1049/2001, as each set of rules has a different scope, purpose and effect. Moreover,
Article 6(7) of the basic anti-dumping regulation and Article 11(7) of the basic anti-
subsidy regulation expressly exclude from the privileged access of any party to the
investigation ‘internal documents prepared by the authorities of the Union or its Member
States’.
The requested summary records are internal documents prepared by the Commission.
They contain details on the progress of the anti-dumping investigations and the
reflections and concerns of Member States and the Commission. Their full public
disclosure, irrespective of whether they concern an anti-dumping procedure, which is
already closed or a pending one, is likely to harm the purpose of the investigation and the
protection of the decision-making of the institution. The purpose of an anti-dumping
investigation is to protect the internal market from undue damage created by dumping.
Full public disclosure of the information exchanges between Member States and the
Commission about these investigations would allow parties with knowledge of the
market, for example, about where the production in the EU is situated, to exercise
pressure to the Member State(s) concerned, thus undermining the purpose of the anti-
dumping investigation. This is a realistically foreseeable and not purely hypothetical risk,
as anti-dumping investigations regularly concern products that are only produced by very
few companies in very few Member States. Detailed knowledge of the exchanges
between Member States and the Commission about these investigations would make it
easier for organised interests to exercise pressure on Member States, thus undermining
not only the purpose of the investigation but also seriously undermining the decision-
making process of the Commission in the context of the Trade Defence Instruments
Committee.
5
Anti-dumping investigations rely on the active participation of Member States in the
decision-making process leading to measures. This is why Article 19(5) of the basic anti-
dumping Regulation provides a specific and clear protection for the exchange of
information between the Commission and the Member States. Full public disclosure of
the exchanges between the Member States and the Commission on anti-dumping
investigations, against the explicit provisions of the basic-anti-dumping regulation and
the anti-subsidy regulation, would be contrary to the confidentiality requirements.
Moreover, they would adversely affecting the willingness of the Member States to
cooperate constructively with the Commission and harm the mutual trust between the
Commission and the Member States. As mutual trust is essential for the Commission to
be able to carry out its tasks throughout the different stages of the procedure, disclosure
of the withheld information would seriously undermine the Commission’s decision-
making process.
It follows that the European Commission cannot grant public access under Regulation
(EC) No 1049/2001 to the parts of the documents containing references to confidential
detailed discussions and positions of Member States, particularly, when expressed by
individual Member States identified in the record in the framework of Trade Defence
Instruments committee meetings, as this would result in the above-mentioned
confidentiality requirements being deprived of their meaningful effect. Such a public
disclosure would undoubtedly affect mutual trust between the European Commission and
the Member States and would therefore be at odds with the principle of sincere
cooperation. Please note that documents 10, 12, 13, 15, 21, 23-25 contain references to
individual positions of Member States.
The summary records of the Trade Defence Instruments Committee are internal
documents, which are submitted to members of the committee. Partial access is now
granted to these documents with the exception to the parts that relate to the committee’s
detailed discussions, including on anti-dumping investigations.
In its Corporate Europe Observatory judgment 36, the General Court confirmed that
minutes circulated to participants in the framework of an advisory committee meeting
which was not open to the public, are to be considered as ‘internal documents’ within the
terms of Article 4(3) of Regulation (EC) No 1049/2001, and deserve protection on that
basis. The same reasoning applies to the detailed discussions taking place in the context
of the Trade Defence Instruments Committee.
Full public disclosure on the detailed discussion on anti-dumping measures would
seriously undermine the Commission's leverage to consult Member States'
representatives, in the framework of its decision-making processes, free from external
pressure. Indeed, Member States' participation in Trade Defence Instruments Committee
is of crucial importance for the decision-making process as it allows the Commission to
take into consideration the opinion of the Member States at an early stage of the decision-
making process.
Concerning your argument that several of the requested documents are old, I would like
to draw your attention to the provision of Article 4(7) of Regulation (EC) No 1049/2001.
This article states that the exceptions shall apply for the period during which protection is
justified based on the content of the document. The exceptions may apply for a period of
30 years and even beyond. In this context, it has to be underlined that the same product
36 Judgment of the General Court of 7 June 2013,
Stichting Corporate Europe Observatory v
European
Commission, T-93/11, EU:T:2013:308, paragraphs 32-33.
6
concerned by an investigation and discussed with Member States can at any point in time
become subject to a review procedure; in case anti-dumping measures are imposed, it
will in principle be subject to a review procedure after five years. Furthermore, importers
are entitled to challenge before national Courts any decision of the customs to levy duties
on their imports, even after a regulation to impose measures has become final. This
regularly happens, while in some cases the case comes before a national Courts years
after the adoption of the regulation imposing anti-dumping measures. For the reasons
explained above, the protection of parts of the documents relating to ongoing but also to
closed anti-dumping files is justified. I consider that the content of the withheld parts of
the documents justifies the application of the exceptions also today.
Against this background, there is a real and non-hypothetical risk that the release of the
documents requested would undermine both the purpose of the investigations and the
decision-making process, protected respectively by Article 4(2), third indent and Article
4(3), first and second subparagraph of Regulation (EC) No 1049/2001.
2.2. Protection of the public interest as regards international relations
Article 4(1)(a), third indent, of Regulation No 1049/2001 provides that the
'institutions
shall refuse access to a document where disclosure would undermine the protection of
[…] the public interest as regards […] international relations […]'.
Furthermore, the Court of Justice stressed in the
In ‘t Veld ruling that the institutions
‘must be recognised as enjoying a wide discretion for the purpose of determining whether
the disclosure of documents relating to the fields covered by [the exceptions provided for
in Article 4(1)(a) of Regulation No 1049/2001] could undermine the public interest’ 37.
Consequently, ‘the Court’s review of the legality of the institutions’ decisions refusing
access to documents on the basis of the mandatory exception […] relating to the public
interest must be limited to verifying whether the procedural rules and the duty to state
reasons have been complied with, the facts have been accurately stated, and whether
there has been a manifest error of assessment of the facts or a misuse of powers’ 38.
As per settled case-law, disclosure of European Union positions in international
negotiations can damage the protection of the public interest as regards international
relations 39. The above-mentioned exception can be invoked, if the disclosure might
entail negative repercussions for the European Union’s relations with third countries 40.
The withheld parts of the documents reflect detailed discussions of the Member States
and the Commission on anti-dumping measures for example questions and concerns
expressed by the Member States and/or the Commission, including on legal matters and
hearings before the Hearing Officer. Public disclosure of these parts would reveal, even
indirectly, possible concerns or positions, which may undermine the legitimacy of the
position taken by the Union in the eyes of the international partner. This in turn would
undermine the international relations of the Union. Public disclosure of the withheld parts
37 Judgment of 3 July 2014,
Council v
In ‘t Veld,
C-350/12, EU:C:2014:2039, paragraph 63.
38 Judgment of the General Court of 25 April 2007,
WWF European Policy Programme v
Council, T-
264/04, EU:T:2007:114, paragraph 40.
39 Judgment of the General Court of 19 March 2013,
In ‘t Veld v
European Commission, T-301/10,
EU:T:2013:135, paragraph 123.
40 Judgment of the General Court of 7 February 2002,
Aldo Kuijer v
Council of the European Union, T-
211/00, EU:T:2002:30, paragraph 65.
7
could also be exploited by third parties to weaken the negotiating stance of the
Commission and the effectiveness of the trade defence policy of the Union.
In that context, it has to be underlined that public disclosure of the detailed discussions
between the Commission and the Member States on anti-dumping measures, even though
the detailed positions of its international trade partners on trade defence policy
instruments remain confidential, is sufficient to establish a risk that the interest of the
Union as regards international relations can be undermined 41. The EU Courts have
acknowledged that, in the context of international negotiations, unilateral disclosure by
one negotiating party of the negotiating position of one or more other parties, even if this
appears anonymous at first sight, may be likely to seriously undermine, for the
negotiating party whose position is made public and, moreover, for the other negotiating
parties who are witnesses to that disclosure, the mutual trust essential to the effectiveness
of those negotiations 42. These findings are applicable also in the case at hand. Public
disclosure of the detailed discussions of the Member States and the Commission, even
without always indicating the individual positions of each Member State participating to
the discussion, would undermine the mutual trust among the Member States and the
Commission and jeopardise the effectiveness of the trade defence measures by making
possible to exercise pressure on concerned Member States, thus weakening the
Commission’s international standing and undermining the international relations of the
Union. Indeed, establishing and protecting a sphere of mutual trust in the context of
international relations is a very delicate exercise.
Based on the above, I consider that the risk of undermining the public interest as regards
international relations based on Article 4(1)(a), third indent of Regulation (EC) No
1049/2001 is reasonably foreseeable and non-hypothetical, given the sensitivity of the
issues relating to the trade defence policy.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) third indent and Article 4(3), second indent 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) third indent and Article 4(3), second indent of
Regulation (EC) No 1049/2001.
The fact that the documents relate to an administrative procedure and not to any
legislative act, for which the Court of Justice has acknowledged the existence of wider
openness 43, provides further support to this conclusion.
41 Judgment of the General Court of 12 September 2013,
Leonardo Besselink v
Council of the European
Union, T-331/11, EU:T:2013:419, paragraph 71.
42 Judgment of the General Court of 19 March 2013,
Sophie In 't Veld v
European Commission,
T-301/10, EU:T:2013:135, paragraph 126.
43 Judgment of the Court of Justice of 29 June 2010,
Commission v
Technische Glaswerke Ilmenau
Gmbh, C-139/07 P, EU:C:2010:376, paragraphs 53-55 and 60.
8