Dear Madam, Sir,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, and article 30 of Council Decision (CFSP) 2015/1835 of 12 October 2015, I am requesting documents which contain the following information:

All documents related to the four measures recommended by the EDA Legal Office, listed in the 14 October 2021 letter to the European Ombudsman (EDA202110041/CSD/CE):

1) guidelines on post-employment restrictions
2) insertion of new standard paragraph in vacancy notices
3) possible adoption of internal procedures restricting access to confidential information
4) possible appointment of an EDA ethics officer

My request thus covers any document, including but not limited to minutes, e-mails, annexes, letters, drafts, notes. The timeframe is from 14 October 2021 until today, 17 May 2022.

Sincerely,
Peter Teffer
Follow the Money
Overtoom 197
1054 HT Amsterdam
The Netherlands

ACCESS TO DOCUMENTS, Europäische Verteidigungsagentur

9 Attachments

Dear Sir,

 

We hereby acknowledge receipt of your application for access to documents,
which was registered by EDA on 17 May 2022.

 

In accordance with Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, applicable to EDA
in accordance with Article 30 of Council Decision 2015/1835 of 12 October
2015, your application will be handled within 15 working days. The time
limit will expire on 10 June 2022. In case this time limit needs to be
extended, you will be informed in due course.

 

Yours sincerely,

 

EDA Access to Documents
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ACCESS TO DOCUMENTS, Europäische Verteidigungsagentur

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Dear Sir,

We refer to your email of 17 May 2022 wherein you submit an application
for access to documents, registered by EDA on 17 May 2022 under the
reference number 2022-18-IN, in which you seek access to:

 

“All documents related to the four measures recommended by the EDA Legal
Office, listed in the 14 October 2021 letter to the European Ombudsman
(EDA202110041/CSD/CE):

 

1) guidelines on post-employment restrictions

2) insertion of new standard paragraph in vacancy notices

3) possible adoption of internal procedures restricting access to
confidential information

4) possible appointment of an EDA ethics officer

 

My request thus covers any document, including but not limited to minutes,
e-mails, annexes, letters, drafts, notes. The timeframe is from 14 October
2021 until today, 17 May 2022.”

 

 

We have identified a number of documents which fall within the scope of
the request and we are pleased to disclose the following (attached /
linked):

 1. [1]Reply from the European Defence Agency (EDA) to the European
Ombudsman's recommendations (europa.eu) (already made public on the
European Ombudsman’s website in redacted form)
 2. EDA HR template vacancy notice for Senior Manager positions
 3. EDA application form post-employment

 

Furthermore, there is additional guidance in this context, which predates
the timeframe indicated in your request, but remains valid and applicable
at present:

 4. EDA Internal presentation on ethics & conduct
 5. EDA website on [2]Ethics and Conduct (europa.eu).

 

As for the redactions of personal data contained in the documents, Article
9(1)(b) of Regulation 2018/1725 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 put forward any
arguments to establish the necessity to have the data transmitted for a
specific purpose in the public interest. Consequently, we have concluded
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.

 

We regret to inform you that further documents identified as falling in
the scope of your request, notably internal emails, drafts and ongoing
resource requests cannot be released since they are protected by the
following exceptions:

1. Article 4(3) of Regulation 1049/2001- protection of the decision-making
process

Pursuant to Article 4(3) access to a document, drawn up by an institution
for internal use or received by an institution, which relates to a matter
where the decision has not been taken by the institution, shall be refused
if disclosure of the document would seriously undermine the institution's
decision-making process, unless there is an overriding public interest in
disclosure.

The internal emails and draft documents prepare and further elaborate on
ongoing initiatives and internal decision-making processes. These
documents would reveal preliminary views and policy options which are
currently under consideration and discussion. More specifically, the
internal decision-making process would be seriously undermined if staff
members involved could not rely on the confidentiality of these
working-level discussions before an official position by management at the
required level is taken. EDA services must be able to explore all possible
options on a working level free from external scrutiny during the
development of policies and the preparation of resource requests.
Therefore, the exception laid down in Article 4(3) first subparagraph of
Regulation 1049/2001 applies to these documents.

We have examined to which extent the exception laid down in Article 4(3)
of Regulation 1049/2001 may be waived in case of an overriding public
interest in disclosure. Such an interest must be firstly a public interest
and secondly outweigh the harm caused by the disclosure. Having analysed
your request we have not found any elements which could justify the
existence of an overriding public interest in the sense of the Regulation,
which would outweigh the exception stipulated in Article 4(3) mentioned
above.

We consider that the prevailing interest in this case is to protect the
internal decision-making process of the Agency.

2. Article 4(1)(b) privacy and the integrity of the individual, in
particular in accordance with Union legislation regarding the protection
of personal data.

Article 9(1)(b) of Regulation 2018/1725 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 put forward
any arguments to establish the necessity to have the data transmitted for
a specific purpose in the public interest. Consequently, we have concluded
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.

We have considered whether partial access could be granted to the
documents requested. Unfortunately, even in such a case the interests
protected under Article 4 would be prejudiced. Therefore, access to the
entirety of the documents must be refused.

For your further information we would like to draw your attention to the
rules governing resources and budget, in particular the procedure to
prepare the draft general budget, including resource requests (incl. the
related staff establishment plan), for each year:

-        [3]EDA Council Decision (europa.eu), notably Article 13,

-        [4]EDA financial rules (europa.eu), notably Article 14,

-        [5]EDA website (Budget and staff establishment plan).

Means of redress

In accordance with Article 7(2) of Regulation 1049/2001, you are entitled
to make a confirmatory application requesting EDA to review its position.
Such a confirmatory application should be addressed within 15 working days
upon receipt of this email to the Chief Executive of EDA to the following
email: [6][EDA request email] .
 

Yours sincerely,

 

EDA Access to Documents
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[11]signature_1554460717  [12]signature_1422700287 Drapiers 17-23, 1050 Brussels,
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From: ACCESS TO DOCUMENTS <[EDA request email]>
Sent: Tuesday, May 17, 2022 15:29
To: Peter <[FOI #11252 email]>
Cc: ACCESS TO DOCUMENTS <[EDA request email]>
Subject: RE: access to documents request - EDA Legal Office measures

 

Dear Sir,

 

We hereby acknowledge receipt of your application for access to documents,
which was registered by EDA on 17 May 2022.

 

In accordance with Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, applicable to EDA
in accordance with Article 30 of Council Decision 2015/1835 of 12 October
2015, your application will be handled within 15 working days. The time
limit will expire on 10 June 2022. In case this time limit needs to be
extended, you will be informed in due course.

 

Yours sincerely,

 

EDA Access to Documents
[19]signature_572346763
[20]A picture containing drawing Description  
automatically generated    
[25]signature_962340998  
FOLLOW US ON  [21]signature_1410448363  [26][EDA request email]
[22]signature_1761553044  [27]signature_1728784819   Rue des
[23]signature_1554460717  [24]signature_1422700287 Drapiers 17-23, 1050 Brussels,
Belgium
[28]signature_1141883288 
[29]www.eda.europa.eu
[30]signature_572346763

 

 

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Dear Madam, Sir,

I refer to the EDA's reply dated 10 June 2022 to my application for access to documents registered on 17 May 2022 under the reference number 2022-18-IN.

You have informed me that in addition to the documents you have provided (most of which have already been made public via the European Ombudsman), that the EDA has identified "further documents" which fall in the scope of my request "notably internal emails, drafts and ongoing resource requests".

However, from your reply I cannot determine the number or nature of these further documents - information which is relevant in the context of my right to make a confirmatory application. Perhaps such a confirmatory application is not necessary, but I need to see the list first before I can decide.

Can you provide a list of the titles of the withheld documents, including their dates?

I would appreciate it if you could send this list by the end of this week, i.e. Friday 24 June.

Sincerely,
Peter Teffer

ACCESS TO DOCUMENTS, Europäische Verteidigungsagentur

9 Attachments

Dear Sir,

 

We refer to your email of 21 June 2022 wherein you request a list of the
further documents referred to in EDA’s reply of 10 June 2022 to your
access to documents request (2022-18-IN).

As already explained, these further documents concern notably internal
emails, drafts and ongoing resource requests which form part of the
process for decision-making (internal preparation and decision-making by
the EDA participating Member States meeting as the Steering Board) and
fall under several exceptions of Article 4 of Regulation 1049/2001.

Unfortunately, your proposal would require the creation of a new document
and would go beyond the requirements of the Regulation, which applies to
existing documents pursuant to Article 2(3) of Regulation 1049/2001.
Furthermore, the creation of such a document to address your follow-up
request has been assessed as entailing a disproportionate administrative
burden for the Agency.

 

As indicated in our response, in accordance with Article 7(2) of
Regulation 1049/2001, you are entitled to make a confirmatory application
requesting EDA to review its position. Such a confirmatory application
should be addressed within 15 working days upon receipt of that email
(dated 10 June 2022) to the Chief Executive of EDA to the following email:
[[EDA request email]].

 

Yours sincerely,

 

 

EDA Access to Documents
[1]signature_572346763
[2]A picture containing drawing Description  
automatically generated    
[7]signature_962340998  
FOLLOW US ON  [3]signature_1410448363  [8][EDA request email]
[4]signature_1761553044  [9]signature_1728784819   Rue des
[5]signature_1554460717  [6]signature_1422700287 Drapiers 17-23, 1050 Brussels,
Belgium
[10]signature_1141883288 
[11]www.eda.europa.eu
[12]signature_572346763

 

 

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Dear Madam, Sir,

Please pass this on to the person who reviews confirmatory applications.

I refer to my access to documents request registered on 17 May 2022 under the reference number 2022-18-IN, and my subsequent e-mail exchange with the EDA.

I had asked for;
“All documents related to the four measures recommended by the EDA Legal Office, listed in the 14 October 2021 letter to the European Ombudsman (EDA202110041/CSD/CE):
1) guidelines on post-employment restrictions
2) insertion of new standard paragraph in vacancy notices
3) possible adoption of internal procedures restricting access to confidential information
4) possible appointment of an EDA ethics officer My request thus covers any document, including but not limited to minutes, e-mails, annexes, letters, drafts, notes. The timeframe is from 14 October 2021 until today, 17 May 2022.”

The EDA informed me on 10 June 2022 that it had “identified a number of documents which fall within the scope of the request”. It attached to its reply four documents, several of which had already been made public on the website of the European Ombudsman.

I was also told that “further documents identified as falling in the scope of your request, notably internal emails, drafts and ongoing resource requests cannot be released since they are protected by the following exceptions: 1. Article 4(3) of Regulation 1049/2001- protection of the decision-making process”.

In response, on 21 June 2022, I requested a list of the titles of the withheld documents, including their dates. On 24 June 2022, the EDA replied to say that sending such a list “would require the creation of a new document and would go beyond the requirements of the Regulation, which applies to existing documents pursuant to Article 2(3) of Regulation 1049/2001. Furthermore, the creation of such a document to address your follow-up request has been assessed as entailing a disproportionate administrative burden for the Agency.”

As for the first part of the paragraph, it is true that Regulation 1049/2001 applies only to existing documents. But the Regulation does not prohibit EU institutions and agencies from creating documents in the context of such an access to documents request. In several of the European Commission’s DG’s it is standard practice to provide the applicant with a list of existing documents, regardless of whether they can be released or not. It is not mandatory, but it is a way to show a constructive approach to the principle of access to documents.

It is difficult to see why creating such a list would be “a disproportionate administrative burden”. In order to reply to my request, the EDA has had to identify each individual document in its possession falling within the scope of the request. It also had to assess each document: can it be released or not? Does an article 4 exception apply or not? Is there an overriding public interest or not?

I do not see how the EDA can carry out this exercise without creating some form of list, overview or spreadsheet of the documents which exist. This means that the EDA already internally must have created a list of documents falling within the scope of my application. It would not be such a disproportionate administrative burden to release that list to the applicant.

I also would like to ask the EDA to review its position on the application of article 4.3 of the Regulation.

The EDA argued that the withheld documents “would reveal preliminary views and policy options which are currently under consideration and discussion”. But the EDA has already revealed these policy options, in the 14 October 2021 letter to the European Ombudsman (EDA202110041/CSD/CE). This is a letter which the EDA explicitly acknowledged “will be published on the European Ombudsman’s website”.

In the letter, the EDA has already revealed that the EDA Legal Office has recommended inter alia “[..]EDA to consider adopting internal procedures restricting access to confidential information (where staff still in service declare a move to another job)” and “EDA to consider formally appointing a member of staff as EDA Ethics Officer”.

The letter continued to inform the Ombudsman that these measures are “under preparation by the respective services and will be put in place as soon as approved by the management”.

The policy options are thus already disclosed to the Ombudsman and effectively the wider public – even though an official position by management on whether to adopt these internal procedures and appoint an EDA ethics officer respectively, has not yet been taken.

I therefore believe that the perceived risk of seriously undermining the EDA’s internal decision-making process is in fact quite limited.

Finally, I believe there is an overriding public interest in the publication of these documents. I made my request in the context of the European Ombudsman inquiry on how the European Defence Agency handled the applications of its former chief executive to take on senior positions at Airbus. At the end of that inquiry, the European Ombudsman “found two instances of maladministration and made two recommendations and one suggestion to avoid similar issues arising in future”. It is thus in the public interest to see whether measures are being taken to avoid similar issues arising in future.

The EDA has told the European Ombudsman on 14 October 2021 that “follow-up on all specific points [i.e. the four measures recommended by the Legal Office] is underway”. It is now eight months since that statement to the Ombudsman. It is in the public interest that journalists such as myself are able to view the progress made towards that promise to the Ombudsman.

Sincerely,
Peter Teffer

ACCESS TO DOCUMENTS, Europäische Verteidigungsagentur

9 Attachments

Dear Sir,

 

We hereby acknowledge receipt of your email dated 27 June 2022 by which
you submit a confirmatory application.

 

In accordance with Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, applicable to EDA
in accordance with Article 30 of Council Decision 2015/1835 of 12 October
2015, your application will be handled within 15 working days. The time
limit will expire on 18/07/2022. In case this time limit needs to be
extended, you will be informed in due course.

 

Yours sincerely,

 

EDA Access to Documents
[1]signature_572346763
[2]A picture containing drawing Description  
automatically generated    
[7]signature_962340998  
FOLLOW US ON  [3]signature_1410448363  [8][EDA request email]
[4]signature_1761553044  [9]signature_1728784819   Rue des
[5]signature_1554460717  [6]signature_1422700287 Drapiers 17-23, 1050 Brussels,
Belgium
[10]signature_1141883288 
[11]www.eda.europa.eu
[12]signature_572346763

 

 

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ACCESS TO DOCUMENTS, Europäische Verteidigungsagentur

10 Attachments

Dear Sir,

 

Please find attached the Chief Executive's decision regarding the
confirmatory application you filed by email on 27 June 2022.

 

Yours sincerely,

 

EDA Access to Documents
[1]signature_572346763
[2]A picture containing drawing Description  
automatically generated    
[7]signature_962340998  
FOLLOW US ON  [3]signature_1410448363  [8][EDA request email]
[4]signature_1761553044  [9]signature_1728784819   Rue des
[5]signature_1554460717  [6]signature_1422700287 Drapiers 17-23, 1050 Brussels,
Belgium
[10]signature_1141883288 
[11]www.eda.europa.eu
[12]signature_572346763

 

 

From: ACCESS TO DOCUMENTS <[EDA request email]>
Sent: Friday, July 1, 2022 10:21
To: Peter <[FOI #11252 email]>
Cc: ACCESS TO DOCUMENTS <[EDA request email]>
Subject: RE: Internal review of access to documents request - EDA Legal
Office measures

 

Dear Sir,

 

We hereby acknowledge receipt of your email dated 27 June 2022 by which
you submit a confirmatory application.

 

In accordance with Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, applicable to EDA
in accordance with Article 30 of Council Decision 2015/1835 of 12 October
2015, your application will be handled within 15 working days. The time
limit will expire on 18/07/2022. In case this time limit needs to be
extended, you will be informed in due course.

 

Yours sincerely,

 

EDA Access to Documents
[13]signature_572346763
[14]A picture containing drawing Description  
automatically generated    
[19]signature_962340998  
FOLLOW US ON  [15]signature_1410448363  [20][EDA request email]
[16]signature_1761553044  [21]signature_1728784819   Rue des
[17]signature_1554460717  [18]signature_1422700287 Drapiers 17-23, 1050 Brussels,
Belgium
[22]signature_1141883288 
[23]www.eda.europa.eu
[24]signature_572346763

 

 

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