Ref. Ares(2021)5020611 - 09/08/2021
EUROPEAN COMMISSION
NEIGHBOURHOOD AND ENLARGEMENT NEGOTIATIONS
The acting Director-General
Brussels,
Subject:
Your application for access to documents – Ref GestDem 2021/4090
Dear Ms Pacciardi,
I refer to your application dated 19 June 20211, registered on 21 June 2021 following
receipt of your postal address2. Your request concerns:
“
Documents in relation to the implementation of the projects "CTR - PEERS: Protection
Enabling Environment and Resilience Services T05-EUTF-NOA-LY-08-03":
- In-depth Guidelines/minutes of meetings on how to carry out the activities generically
indicated in the Action Fiches of project and in the Akvo platform.
- Information concerning detailed activities that are being implemented under this
project by CESVI and IMC.
- Monitoring reports on performed activities.
- Minutes of the meetings of the Operational Committee, as the body responsible for
reviewing and approving the actions financed by the EUTF, and evaluating reports of the
impact of this project on migrants and refugees.
- Financial reports detailing the expenditure items of the 5,000,000 EUR budget so far
invested in the project.”
I also refer to our emails of 12 June 20213 and 3 August 20214, by which we informed
you that an extended time limit was needed for the purpose of internal and external
consultations regarding your request.
1 Ref. Ares(2021)4035126.
2 Ref. Ares(2021)4035640.
3 Ref. Ares(2021)4514746.
4 Ref. Ares(2021)4932861.
Ms Agnese Pacciardi
Via Vittorio Giambruni 2/4
57128 Livorno
Italy
By email only:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Your application concerns 44 documents, which you can find listed in Annex ‘List of
documents’.
Documents 6 to 15 are publicly available documents and you can find the relevant links
to them in the annexed ‘List of documents’.
As regards the remaining documents, having examined them under the provisions of
Regulation (EC) No 1049/20015 and taking into account the opinion of third parties
concerned, I have decided that:
- Full access can be granted to documents 39 and 40;
- Partial access can be granted to documents 3, 4, 17, 18, 20, 21, 22, 25, 28 and 29
as full disclosure is prevented by the exceptions to the right of access laid down in
Article 4(2), first indent (commercial interests of a natural or legal person,
including intellectual property) and Article 4(1)(b) (protection of the privacy and
integrity of the individual) of Regulation (EC) No 1049/2001;
- Access must be refused to documents 1, 2, 5, 7, 16, 19, 23-27, 30-38, 41-44 as
disclosure is prevented by the exceptions to the right of access laid down in
Article 4(1)(a), first indent (protection of the public interest as regards public
security), Article 4(1)(a), third indent (protection of the public interest as regards
international relations), Article 4(2), first indent (commercial interests of a natural
or legal person, including intellectual property),Article 4(1)(b) (protection of the
privacy and integrity of the individual) and Article 4(3), second subparagraph
(protection of the decision-making process) of Regulation (EC) No 1049/2001.
The justifications are as follows:
1. Protection of the public interest as regards public security
Article 4(1)(a), 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 the public interest as regards public security’.
As regards the interests protected by Article 4(1)(a) of Regulation (EC) No 1049/2001,
the General Court has ruled that, ‘it must be accepted that the particularly sensitive and
fundamental nature of those interests, combined with the fact that access must, under that
provision, be refused by the institution 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 complexity and delicacy that call for the exercise of particular care. Such a
decision requires, therefore, a margin of appreciation’6.
In this context, it is important to mention that when (partial) access is given to documents
as a result of an application submitted under Regulation (EC) No 1049/2001, this access
is automatically granted to the public at large, and not only to the applicant concerned.
Taking into account the highly volatile and complex situation in Libya at the moment,
this fact is of particular importance.
5 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding
public access to European Parliament, Council and Commission documents, Official Journal L 145 of 31
May 2001, p. 43.
6 Judgment of the General Court of 11 July 2018,
Client Earth v
European Commission, T-644/16,
paragraph 23.
2
Some of the documents identified, or parts thereof, contain concrete information whose
disclosure would put at risk not only staff, partners and contractors but also project target
groups, consisting mostly of vulnerable population such as detained refugees and
migrants. Documents or part of documents to which access is refused contain information
on the location of activities implemented by partners and contractors as well as the
whereabouts of the reached target groups, locations of members and representatives of
local Civil Society Organisations (CSOs) managing key community-led initiatives as part
of this action. Certain areas of Libya might be targeted if such information is publicly
disclosed. Cross-referencing of information in the listed documents with data available
via other sources creates the risk of them being targeted or attacked in a context of
growing instability such as the one in Libya.
Having regard to the above, I conclude that there is a reasonably foreseeable and non-
hypothetical risk that disclosure of certain documents, or parts thereof, would undermine
the protection of the public interest as regards public security. Therefore, I consider that
the use of the exception under Article 4(1)(a), first indent, of Regulation (EC) No
1049/2001 is justified, and that access to certain parts of the documents or to some of the
documents in question must be refused on that basis.
2. Protection of the public interest as regards international relations
Article 4(1)(a), third indent, of Regulation (EC) 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 […]'.
As per settled case-law, 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 1049/2001]
could undermine the public interest’7.
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’8.
The full public disclosure of the documents identified as falling under the scope of the
request would severely affect the international relations between the EU and the Libyan
authorities, given the content of the documents which provide insight into relevant
actors’ involvement and decision-making on the ground and could thereby undermine the
strategic planning for envisaged project activities funded by the EU. This could, in turn,
further jeopardize the EU and the other partners’ ability to provide support to vulnerable
migrants in Libya and ultimately impede future access to final beneficiaries.
Some of the listed documents were drafted as a part of bilateral exchanges between the
EU and its partners or for internal purposes. Disclosing such documents, which were not
designed for external communications purposes, might lead to misunderstandings and/or
misrepresentations regarding the nature of the EU-funded activities in Libya. This could
be broadly relayed and negatively impact established international relations with Libyan
7 Judgment of 3 July 2014,
Council v
In ‘t Veld, C-350/12, paragraph 63.
8 Judgment of 25 April 2007,
WWF European Policy Programme v
Council, T-264/04, paragraph 40.
3
authorities, third country representatives and partner organisations which could
ultimately lead to a heightened security risk for all the stakeholders involved.
Against this background, there is a risk that full disclosure of certain documents, or parts
thereof, would undermine the protection of the public interest as regards international
relations. I consider this risk as reasonably foreseeable and non-hypothetical, given the
sensitivity of the issue and the relevance of the above-referred information in the current
context in Libya.
3. Protection of the commercial interests of a natural or legal person, including
intellectual property
Article 4(2), first indent, of Regulation (EC) No 1049/2001 provides that ‘the 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’.
Some of the identified documents contain sensitive commercial data belonging to third
parties, which are not public, and their disclosure would undermine the integrity of
financial operations of the entities they belong to. I refer in particular to bank accounts of
grant beneficiaries, the full proposal and the detailed budget.
These documents reflect the specific know-how and experience belonging to the entity.
That know-how was taken into account by the Commission when evaluating the
applications submitted under the call for proposals, and, therefore, contributed to the
attractiveness of awarding the contract to that entity. In turn, that information had a major
impact on selection of the application of this specific beneficiary from among others
participating in this call. The public disclosure of such information would undermine its
"commercial interests", as it would give other potential applicants in future calls the
possibility to copy from that application and use it to support their own application.
In this context, I would also like to bring to your attention case T-439/08, Agapiou
Josephides v Commission9, where the General Court ruled that "methodology and
expertise […] highlighted as part of the […] application, […] relate to the specific know-
how […] and contribute to the uniqueness and attractiveness of applications in the more
applications, following in particular a comparative review of proposed projects. Thus,
particularly given the competitive environment in which [the project promoters] operate,
it is necessary to consider that the information in question is confidential".
Furthermore, the General Court in its Judgement of 29 January 2013 in case T-339/10,
Cosepuri v EFSA10, 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".
9 Judgment of 21 October 2010 in 8,
Kalliope Agapiou Joséphidès v European Commission and Education,
Audiovisual and Culture Executive Agency (EACEA),T-439/98.
10 Judgment of 29 January 2013 in
Cosepuri Soc. Coop. pA v European Food Safety Authority (EFSA),
Joined Cases T-339/10 and T-532/10, paragraph 101.
4
This case-law applies
mutatis mutandis also in the case of grants.
The exception of Article 4(2), first indent, of Regulation (EC) No 1049/2001 has to be
read in light of Article 339 of the Treaty on the Functioning of the European Union,
which requires staff members of the European Union institutions to refrain from
disclosing information of the kind covered by the obligation of professional secrecy.
Public access to the above-mentioned information would undermine the commercial
interests of the grant beneficiaries concerned. Therefore, I conclude that access to this
data should be refused.
4. Protection of the privacy and the integrity of the individual
Complete disclosure of the documents is partly prevented by the exception concerning
the protection of privacy and the integrity of the individual outlined in Article 4(1)(b) of
Regulation (EC) No 1049/2001. In particular, these documents contain the names,
contact details and signatures of Commission staff members not pertaining to the senior
management, as well as of staff members of other organisations.
Article 9(1)(b) of the Data Protection Regulation11 does not allow the transmission of
these personal data, except if you prove that it is necessary to have the data transmitted to
you for a specific purpose in the public interest and where there is no reason to assume
that the legitimate interests of the data subject might be prejudiced. In your request, you
do not express any particular interest to have access to these personal data, nor do you
put forward any arguments to establish the necessity to have the data transmitted for a
specific purpose in the public interest.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data contained in the requested
documents, 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 disclosure of the personal data
concerned.
5. Protection of the decision-making process
Article 4(3) second subparagraph of Regulation 1049/2001 provides that ‘Access 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’.
Document 41 “Results and follow-up actions QRM for the 7th meeting of the
Operational Commitee of the Emergency Trust Fund for Africa – North of Africa
Window” contains internal exchanges and follow up points between different
Directorates General of the European Commission as well as with the European External
Action Service. The subject-matter of the document concerns a decision-making process
11 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/EC, OJ L 295, 21.11.2018, p. 39.
5
which was finalised, (draft of Action Document) but concerning actions on the field that
are fully ongoing and can evolve and be modified depending of the circumstances (e.g.
the irruption of Covid-19).
Hence, the disclosure would reveal internal opinions and internal follow up points on
which were just intermediary step within the European Commission services, which are
then completed with further steps not mentioned in the document. This could potentially
cause confusion to the public, by placing in the public domain preliminary statements of
staff members of the European Commission which do not necessarily reflect the final
position of the Union.
In addition, there is a real and non-hypothetical risk of self-censorship by the European
Commission services, which monitor the relations between the European Union and
Libya and follow up the funding of the actions in the ground. Public access to the results
and follow up actions discussed as an intermediate step before a final decision is taken,
would bring a serious harm to the decision-making procedure concerned, as the staff of
the services concerned would become more wary to share their views openly if they
knew that their opinions on this sensitive topic would be released to the public.
Indeed, as the General Court has held, ‘the possibility of expressing views independently
within an institution helps to encourage internal discussions with a view to improving the
functioning of that institution and contributing to the smooth running of the decision-
making process’12.
In light of the above, Document 41 should be protected in accordance with Article 4(3),
second subparagraph, of Regulation (EC) No 1049/2001.
Partial Access
We have considered whether partial access could be granted to the documents requested
and currently withheld but this was deemed impossible, as the sensitive elements are
integral to them. Please note that we cannot provide you with more detailed information
on these documents without disclosing their substance which is protected by the quoted
exceptions laid down in Article 4 of Regulation (EC) No 1049/2001.
Means of redress
In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to
make a confirmatory application requesting the Commission to review its position. Such
a confirmatory application should be addressed within 15 working days upon receipt of
this letter to the Secretariat-General of the Commission at the following address:
European Commission
Secretariat-General
Transparency,
Document
Management
&
Access
to
Documents
(SG.C.1)
BERL 7/076
B-1049 Brussels
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
12 Judgment of 15 September 2016,
Phillip Morris v Commission, T-18/15, paragraph 87.
6
Yours sincerely,
[e-signed]
Maciej Popowski
Encl.:
List of documents
Documents 3, 4, 17, 18, 20, 21, 22, 25, 28, 29, 39 and 40
7
Electronically signed on 08/08/2021 13:11 (UTC+02) in accordance with article 11 of Commission Decision C(2020) 4482