Ref. Ares(2017)1114971 - 02/03/2017
Directorate-General for Trade
The Director General
trade.dga1.b.1(2016) 6982885 By registered letter with acknowledgment
Mr Stefan Knoll
Your application for access to documents – Ref. GestDem N° 2015/5124
Dear Mr Knoll,
I refer to your request for access to documents dated 29 September 2015, under Regulation
(EC) No 1049/2001 ("Regulation 1049/2001"),1 registered under the above mentioned
In your request you sought access to lists and reports of meetings with external stakeholders
related to the Transatlantic Trade and Investment Partnership (TTIP) as well as
correspondence between DG Trade and these stakeholders. We sent you a list of 640
meetings on 29 August 2016 together with a recap of already released documents. On 20 and
21 October 2016, and 25 November 2016, we sent you additional batches of documents.
This reply concerns a further (but not final) batch of documents under your request
2015/5124, containing in total 74 documents. You will find a list of these documents in
Annex I. The released documents are enclosed.
1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 20 May 2001 regarding
public access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
In accordance with settled case law2, when an institution is asked to disclose a document, it must
assess, in each individual case, whether that document falls within the exceptions to the right of
public access to documents set out in article 4 of Regulation 1049/2001. Such assessment is
carried out in a multi-step approach: first, the institution must satisfy itself that the document
relates to one of the exceptions, and if so, decide which parts of it are covered by that exception;
second, it must examine whether disclosure of the parts of the document in question pose a
“reasonably foreseeable and not purely hypothetical
” risk of undermining the protection of the
interest covered by the exception; third, if it takes the view that disclosure would undermine the
protection of any of the interests defined under articles 4(2) and 4(3) of Regulation 1049/2001,
the institution is required "to ascertain whether there is any overriding public interest justifying
In view of the objectives pursued by Regulation 1049/2001, notably to give the public the widest
possible right of access to documents4, "the exceptions to that right […] must be interpreted and
We are pleased to grant you partial access to all 74 documents. Please note that some parts of the
reports have been removed as they fall out of the scope of your request.
In all 74 documents the names of the participants to the meetings and correspondence, as well as
other personal identifiers (e.g.
e-mail addresses, telephone numbers, office numbers) have been
redacted, pursuant to article 4(1)(b) of Regulation 1049/2001 and in accordance with Regulation
(EC) No 45/2001 ("Regulation 45/2001")6. Hence, the main content of these documents is
accessible. Moreover, the names of members of Cabinet, senior management of the Commission
starting from the Director level, and senior representatives of external stakeholder (e.g.
Director) have all been disclosed.
As regards documents 3, 4, 6, 7, 8, 10, 12, 23, 25, 26, 40, 42, 43, 44, 45, 46, 47, 55, 57, 63, 64,
67, 72 and 73, in addition to personal data covered by the exception of article 4(1)(b) of
Regulation 1049/2001, other information has been redacted as it is covered either by the
exception set out in Article 4(1)(a) third indent of Regulation 1049/2001 (protection of the public
interest as regards international relations) or by the exception set out in Article 4(2) first indent of
2 Judgment in Sweden and Maurizio Turco v Council
, Joined cases C-39/05 P and C-52/05 P,
EU:C:2008:374, paragraph 35.
paragraphs 37-43. See also judgment in Council v Sophie in ’t Veld
, C-350/12 P, EU:C:2014:2039,
paragraphs 52 and 64.
4 See Regulation (EC) No 1049/2001, recital (4).
5 Judgment in Sweden v Commission,
C-64/05 P, EU:C:2007:802, paragraph 66.
6 Regulation (EC) No 45/2001 of the European Parliament and the 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 data, OJ L 8, 12.1.2001, p. 1.
Regulation 1049/2001 (protection of the commercial interest of a natural or legal person), or by
both. The annex to document 74 is entirely covered by the exception laid down in Article 4(1)(a)
third indent of Regulation 1049/2001.
The reasons justifying the application of the abovementioned exceptions are set out below in
sections 1.1, 1.2, 1.3. Section 2 provides an assessment of whether there exists an overriding
public interest in the disclosure.
Protection of international relations (documents 3, 7, 8, 10, 23, 26, 40, 42, 43, 45,
46, 47, 55, 57, 63, 67, 72 and the annex to document 74)
Article 4.1(a) third indent, of Regulation 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.”
According to settled case-law, "the particularly sensitive and essential nature of the interests
protected by Article 4(1)(a) of Regulation No 1049/2001, combined with the fact that access
must be refused by the institution, under that provision, 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 complex and delicate nature which calls for the exercise of particular
care. Such a decision therefore requires a margin of appreciation".
7 In this context, the Court
of Justice has acknowledged that the institutions enjoy "a wide discretion for the purpose of
determining whether the disclosure of documents relating to the fields covered by [the]
exceptions [under Article 4.1(a)] could undermine the public interest"
The General Court found that "it is possible that the disclosure of European Union positions
in international negotiations could damage the protection of the public interest as regards
and "have a negative effect on the negotiating position of the
as well as "reveal, indirectly, those of other parties to the negotiations".
Moreover, the "the positions taken by the Union are, by definition, subject to change
depending on the course of those negotiations and on concessions and compromises made in
that context by the various stakeholders. The formulation of negotiating positions may involve
a number of tactical considerations on the part of the negotiators, including the Union itself.
In that context, it cannot be precluded that disclosure by the Union, to the public, of its own
negotiating positions, when the negotiating positions of the other parties remain secret,
could, in practice, have a negative effect on the negotiating capacity of the Union".
Documents 3, 7, 8, 10, 23, 26, 40, 42, 43, 45, 46, 47, 57, 63, 67, 72 and 74, are all reports of
meetings between DG Trade representatives – in a few cases including also members of the
Judgment in Sison
C-266/05 P, EU:C:2007:75, paragraph 36
Judgment in Council v Sophie in’t Veld
, C-350/12 P, EU:C:2014:2039, paragraph 63.
Judgment in Sophie in’t Veld v Commission
, T-301/10, EU:T:2013:135, paragraphs 123-125.
, paragraph 125.
Cabinet of Commissioner Malmström – with representatives of external stakeholders, such as the
UK Law Societies (document 3), Standard Chartered (document 7), the European Banking
Federation (EBF) (document 8), members of the public services community in Germany
(document 10), the Coalition of Services Industries (CSI) (document 23), Sparkassen and
Deutscher Sparkassen und Giroverband (DSG) (documents 26 and 40), the Confederation of
European Security Services, the Spanish Association of Security Service Providers (Aproser) and
a public affairs consultant, Cambre (document 42), the Association of Social Insurance (AIM)
(document 43), the EU Association of Ship-owners (ECSA) (document 45), representatives of the
European dredgers (document 46), BEUC (document 47), Deutsche Gesetzliche Unfall
Versicherung (DGUV) (document 57), Telefonica (document 63), CCBE International Legal
Services Committee (document 67), the Danish Shipowners' Association and A2Sea (document
72) and the British Medical Association (BMA) (document 74). Document 55 is the report of an
event called "Transatlantic Trade and Investment Partnership (TTIP): what does the future hold
for legal profession?" which was organised by UK law societies.
The annex to document 74 and selected passages in
documents 3, 10, 23, 26, 40, 42, 43, 45, 46,
55, 57, 67 and 72, were withheld as they reveal the external stakeholders’ main business
concerns, strategic interests, priorities and their internal assessment and input for the negotiations.
As such, this information indirectly reveals negotiating priorities, strategic objectives and tactics
which the EU could consider pursuing in its trade negotiations. In addition, certain passages in
documents 7, 8, 45, 46, 47 and 63 contain preliminary assessments, internal commentaries,
opinions and views of individual staff members in relation to certain sensitive matters or
positions that emerged during the negotiations with the US, as well as internal reflections
regarding possible strategies and tactics to be pursued in the discussions.
The information contained in these documents was in general meant for internal use as a basis to
establish EU positions, strategies, objectives and way forward on specific aspects of the
negotiations. Even if the information contained in these documents was related to the TTIP
negotiations, there is a reasonably foreseeable risk that its public disclosure would undermine
and weaken the position of the EU in its ongoing trade negotiations with other third countries
in which similar topics are being discussed. Indeed, the information that the EU’s trading
partners may collect on the basis of the public disclosure of certain detailed positions,
concerns, views and strategies of the Commission and of individual stakeholders may allow
them to extract specific concessions from the EU in the context of the ongoing negotiations,
thus to the disadvantage of the EU’s public interests. Third countries may also anticipate or
deduce certain negotiating positions of the EU ahead of the trade talks on the basis of the
information contained in the withheld passages.
Indeed, the success of trade negotiations depends to a large extent on the protection of
objectives, tactics and fall-back positions of the parties involved. In order to ensure the best
possible outcome in the public interest, the EU needs to retain a certain margin of manoeuvre
to shape and adjust its tactics, options and positions in function of how the discussions evolve
in its trade negotiations. Exposing internal views and considerations would weaken the
negotiating capacity of the EU, reduce its margin of manoeuvre and be exploited by our
trading partners to obtain specific results, thereby undermining the strategic interests of the
EU and consequently, the protection of the public interest as regards international relations.
Moreover, the disclosure of internal views, comments and positions of individual staff
members on issues on which an official position has not been adopted would weaken the
credibility of the Commission in the ongoing negotiations as well as lead the EU's negotiating
partners to potential misleading conclusions, thus jeopardising the public interest as regards
the EU’s international relations.
Although the TTIP negotiations have now come to a pause while the Commission awaits
clarity on the priorities of the new US administration as regards a trade agreement between
the EU and the US,11 preserving the negotiating position of the EU, its margin of manoeuvre
and tactical approaches is also important in order not to jeopardise the results achieved so far
in the TTIP negotiations, nor any further discussions which may take place in the future
between the EU and the US on commercial issues.
Finally, it should be noted that some of the withheld passages reveal, although indirectly, the
position of the US. Such disclosure is likely to upset the mutual trust between the EU and the
US and thus undermine their relations. It would also jeopardise the mutual trust between the
EU and other trading partners as they may fear that in the future their positions would also be
exposed and they may as a result refrain from engaging with the EU. Negotiating partners
need to be able to confide in each other's discretion and to trust that they can engage in open
and frank exchanges of views without having to fear that that these views and positions may
in the future be publicly revealed. As the Court recognised in Case T-301/10 in’t Veld v
, “[…] establishing and protecting a sphere of mutual trust in the context of
international relations is a very delicate exercise"
Protection of privacy and integrity of the individual (documents 1 to 74)
Article 4(1) (b) of Regulation 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".
See Commissioner Malmström’s blog post at https://ec.europa.eu/commission/2014-2019/malmstrom/blog/ttip-assessment-and-pause_en.
12 Judgment in Sophie in’t Veld v European Commission
, T-301/10, EU:T:2013:135, paragraph 126.
The Court of Justice has ruled that "where an application based on Regulation 1049/2001 seeks
to obtain access to documents containing personal data" "the provisions of Regulation 45/2001,
of which Articles 8(b) and 18 constitute essential provisions, become applicable in their
Article 2(a) of Regulation 45/2001 provides that "'personal data' shall mean any information
relating to an identified or identifiable natural person […]"
. The Court of Justice has confirmed
that "there is no reason of principle to justify excluding activities of a professional […] nature
from the notion of 'private life"
14 and that "surnames and forenames may be regarded as personal
15, including names of the staff of the institutions16.
According to Article 8(b) of this Regulation, personal data shall only be transferred to recipients
if they establish "the necessity of having the data transferred"
and additionally "if there is no
reason to assume that the legitimate interests of the data subjects might be prejudiced"
Court of Justice has clarified that "it is for the person applying for access to establish the
necessity of transferring that data"
Documents 1 to 74 all contain names and other personal information that allows the identification
of natural persons.
I note that that you have not established the necessity of having these personal data transferred to
you. Moreover, it cannot be assumed, on the basis of the information available, that disclosure of
such personal data would not prejudice the legitimate interests of the persons concerned.
Therefore, these personal data shall remain undisclosed in order to ensure the protection of the
privacy and integrity of the individuals concerned.
Protection of commercial interests (document 4, 6, 12, 25, 26, 40, 42, 44, 45, 63,
64, 72 and 73)
Article 4(2) first indent, of Regulation 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 […] unless there is an overriding public interest in
13 Judgment in Guido Strack v Commission,
EU:C:2014:2250, paragraph 101; see also judgment
in Commission v Bavarian Lager,
C-28/08 P, EU:C:2010:378, paragraphs 63 and 64.
14 Judgment in Rechnungshof v Rundfunk and Others
, Joined cases C-465/00, C-138/01 and C-139/01,
EU:C:2003:294, paragraph 73.
15 Judgment in Commission v Bavarian Lager,
C-28/08 P, EU:C:2010:378, paragraph 68.
16 Judgment in Guido Strack v Commission,
EU:C:2014:2250, paragraph 111.
, paragraph 107; see also judgment in Commission v Bavarian Lager,
C-28/08 P, EU:C:2010:378,
While not all information concerning a company and its business relations can be regarded
falling under the exception of Article 4(2) first indent18, it appears that the type of information
covered by the notion of commercial interests would generally be of the kind protected under the
obligation of professional secrecy19. Accordingly, it must be information that is "known only to a
limited number of persons"
, "whose disclosure is liable to cause serious harm to the person who
has provided it or to third parties"
and for which "the interests liable to be harmed by disclosure
must, objectively, be worthy of protection "
Documents 4, 6, 12, 25, 26, 40, 42, 44, 45, 63, 64, 72 and 73, are all reports of meetings between
DG Trade representatives – in a few cases including also members of the Cabinet of
Commissioner Malmström – with representatives of external stakeholders, such as Deutsche
Telekom (documents 4 and 25), the French Federation on Insurance Companies (FFIC)
(document 6), Telefonica (document 12), DSG (documents 26 and 40), the Confederation of
European Security Services, Aproser and Cambre (document 42), SEA (document 44), ECSA
(document 45), Telefonica (document 63), Althea Erickson (document 64), the Danish
Shipowners' Association and A2 Sea (document 72), and the Task Group on US Market Access
(USMA) of the EU Dredger's Association (EUDA) (document 73).
Some passages in these documents have been withheld because they contain business sensitive
information pertaining to a company or group of companies, including details about commercial
priorities, objectives, strategies and interests which they pursue in domestic and foreign markets
(documents 40, 44, 45, 63, 72, 73). Some passages also reveal their specific concerns regarding
their competitive position in third countries and the behaviour of competitors, details about their
economic performance and economic data (documents 6, 12, 45, 64). There is a reasonably
foreseeable risk that the public disclosure of this information would harm the commercial
interests of the entities and companies concerned, as it could be exploited by competitors to
undermine their competitive positions in third countries and their relationship with the other
economic operators in such markets.
Moreover, some passages contain specific views, concerns and interests raised by the business
associations and their members in relation to investment and regulatory issues in foreign markets,
market access problems and specific initiatives (documents 25, 26, 42, 44, 63, 72). A few
passages also reveal the stakeholders’ assessments and comments regarding the economic and
political situation in certain countries, which if publicly disclosed would harm the relations that
these organisations have with the governments and regulators in third countries (documents
All this information was shared with the Commission in order to provide useful input and
support for the EU’s objectives in its trade negotiations. Economic operators typically share
18 Judgment in Terezakis v Commission
, T-380/04, EU:T:2008:19, paragraph 93.
19 See Article 339 of the Treaty on the Functioning of the European Union.
20 Judgment in Bank Austria v Commission,
T-198/03, EU:T:2006:136, paragraph 29.
information with the Commission so that the latter can determine how to best position itself in
the negotiations in order to protect its strategic interests and those of its industry, workers and
citizens. Ensuring that the Commission continues to receive access to this information and
that the industry engages in open and frank discussions with the Commission, are key
elements for the success of the internal and external policies of the EU and its international
negotiations. Bringing in the public domain specific business related information that
companies share with the Commission may prevent the Commission from receiving access to
such information in the future.
Finally, the redacted passage in document 4 contains internal opinions and impressions of
individual DG TRADE staff members regarding certain economic operators which if
disclosed may undermine their image and reputation, as well as their business relations.21
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4.2 first indent of Regulation 1049/2001 applies unless there
is an overriding public interest in disclosure of the documents. Such an interest must, first, be
public and, secondly, outweigh the harm caused by disclosure. Accordingly, we have also
considered whether the risks attached to the release of the withheld parts of documents 4, 6, 12,
25, 26, 40, 42, 44, 45, 63, 64, 72 and 73
are outweighed by the public interest in accessing the
requested documents. We have not been able to identify any such public interest capable of
overriding the commercial interests of the companies concerned. The public interest in this
specific case rather lies on the protection of the legitimate confidentiality interests of the
stakeholders concerned to ensure that the Commission continues to receive useful
contributions for its ongoing negotiations with third countries without undermining the
commercial position of the entities involved.
Pursuant to Article 4.6 of Regulation 1049/2001 "[i]f only parts of the requested document
are covered by any of the exceptions, the remaining parts of the document shall be released"
Accordingly, we have also considered whether partial access can be granted to the attachment
to document 74. However, this document is entirely covered under the exception set out in
Article 4.1(a) third indent of Regulation 1049/2001 as it is impossible to disclose any parts
without undermining the protection the public interest as regards international relations.
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a confirmatory
application requesting the Commission to review this position.
21 See by analogy, judgment in Idromacchine and others v Commission
, T-88/09, EU:T:2011:641.
Such a confirmatory application should be addressed within 15 working days upon receipt of
this letter to the Secretary-General of the Commission at the following address:
Transparency unit SG-B-4
Or by email to: [email address]
Annex I – List of documents disclosed, including justification under Regulation 1049/2001;
Annex II – Documents disclosed