EUROPEAN COMMISSION
Brussels, 12.10.2021
C(2021) 7477 final
Ms Lala Hakuma Dadci
Corporate Europe Observatory
Rue d’Edimbourg 26
1050 Brussels
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
– GESTDEM 2021/2139
Dear Ms Hakuma Dadci,
I am writing in reference to your email of 11 May 2021, registered on the same date, by
which you lodge 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’).
I apologise for the delay in the handling of your application.
Through your initial application, you requested access to the minutes of the following
meetings:
‘12 Jan 2021 - Meeting between Aleksandra Tomczak and Eurogas - Gas package –
proposals of the European gas industry;
24 Sep 2020 - Meeting between Aleksandra Tomczak and Eurogas - TEN-E legislation
and the potential for gas sector decarbonisation;
08 Dec 2020 - Meeting between Aleksandra Tomczak and IOGP-TEN-E regulation;
22 Oct 2020 - Meeting between Antoine Colombani and IOPG - Sustainable Finance
and Taxonomy;
1 Official Journal L 345, 29.12.2001, p. 94.
2 Official Journal L145, 31.05.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
29 Sep 2020 - Meeting between Aleksandra Tomczak, Damyana Stoynova and IOGP -
Energy System Integration – ideas for CCUS Forum;
05 Jun 2020 - Meeting between Executive Vice-President Frans Timmermans and IOGP
-Clean energy investments and sustainable finance, solutions for transport
decarbonisation, power generation and heating, hydrogen and CCS;
12 Jan 2021 - Meeting between Daniel Mes and Hydrogen Europe -Hydrogen for
Mobility;
01 Oct 2020 - Meeting between Sarah Nelen and Hydrogen Europe-Alternative Fuels in
the ‘Green Recovery’ plan - Hydrogen strategy;
19 Jun 2020 - Meeting between Diederik Samsom, Daniel Mes, Sarah Nelen and
Hydrogen Europe -Transport and European Green Deal;
06 Apr 2020 - Meeting between Executive Vice-President Frans Timmermans and
Hydrogen Europe -Green hydrogen for decarbonising the economy and the energy
system, impact of the current crisis on the hydrogen industry and their role in a green
recovery;
03 Apr 2020 - Sarah Nelen - Hydrogen sector and Green Deal;
19 May 2020 - Meeting between Aleksandra Tomczak, Diederik Samsom and Gas
Infrastructure Europe -Gas infrastructure in the context of climate neutrality;
09 Jul 2020 - Meeting between Antoine Colombani and Business Europe-Climate and
trade, carbon Border Adjustment;
16 Jun 2020 - Meeting between Executive Vice-President Frans Timmermans and
Business Europe-Green Deal and Recovery;
20 May 2020 - Meeting between Sarah Nelen and Business Europe-EGD and European
economic recovery.’
Your request was split into two applications registered under the following references:
Gestdem 2021/2139 and 2140, handled respectively by the Secretariat-General and the
Directorate-General for Climate Action.
On 10 May 2021, the Secretariat-General informed you that it did not hold any relevant
documents in respect to the part of your request assigned to it.
The scope of your confirmatory application, as clarified by your subsequent email of
11 May 2021, concerns this part of your request handled by the Secretariat-General
registered under reference Gestdem 2021/2139 only.
More specifically, you argue that ‘as all the meetings referred to in the requests have been
made public on the Commssion’s website, [they] should have been documented by minutes
2
of meetings’. Therefore, you urge the Commission ‘to disclose the requested information in
the shortest time possible’.
Against this background, the European Commission has carried out a renewed, thorough
search for the documents requested. Following this renewed search, I confirm that the
Institution does not hold any documents that would correspond to the description given in your
application.
Article 2(3) of Regulation (EC) No 1049/2001 provides that the right of access as defined in
that regulation applies only to existing documents in the possession of the institution.
According to settled case law, ‘[n]either Article 11 of Regulation No (EC) 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.
Moreover, the Court of Justice held 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 (EC) No 1049/2001’4
Furthermore, there exists a presumption of lawfulness attached to the declaration by the
institution asserting that documents do not exist5. This presumption continues to apply,
unless the applicant can rebut it by relevant and consistent evidence6.
In this respect, the mere expectation that the European Commission should hold the
requested documents, does not, however, provide relevant and consistent evidence that the
institution is in possession of them.
In this instance, as the European Commission does not hold any such documents
corresponding to the description given in your application, it is not in a position to fulfil
your request.
Against this background, I would like to clarify that, whereas the institutions must under the
duty of good administration, insofar as possible and in a non-arbitrary and predictable
manner, draw up and retain documentation relating to their activities7, they are under no
obligation to systematically draft minutes of meetings, except in respect to meetings which
are of an extraordinary nature or institutional significance8.
3 See
inter alia, Judgment of 2 October 2014,
Strack v Commission, C-127/13 P, EU:C:2014:2250, paragraph
46.
4 Judgment of 11 January 2017,
Typke v Commission, C-491/15 P, EU:C:2017:5, paragraph 31.
5 Judgment of 23 April 2018,
Verein Deutsche Sprache v
Commission, T-468/16, EU:T:2018:207, paragraphs
35-36, as confirmed by the European Court of Justice in Judgment of 30 January 2019,
Verein Deutsche
Sprache eV v
European Commission, C-440/18P, EU:C:2019:77,
6
Ibid.
7 Judgment of 25 April 2007,
WWF European Policy Programme v
Council, T-264/04, EU:T:2007:114, paragraph
61.
8 Judgment of 20 September 2019,
Franklin Dehousse v
Court of Justice of the European Union, T-433/17,
EU:T:2019:632, as clarified by Judgment of 28 October 2020,
Franklin Dehousse v
Court of Justice of the
European Union, T-857/19, EU:T:2020:513, paragraphs 78 and 88.
3
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.
Yours sincerely,
For the Commission
Ilze JUHANSONE
Secretary-General
4