Mr Niccolo Milanese
The Nexus Building, Broadway
Letchworth Garden City, SG69BL
DECISION OF THE SECRETARY GENERAL ON BEHALF OF THE COMMISSION PURSUANT
TO ARTICLE 4 OF THE IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2016/2404
Dear Mr Milanese,
I refer to your e-mail of 15 June 2016, registered on 29 June 2016, in which you submit 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 ('Regulation 1049/2001').
SCOPE OF YOUR REQUEST
In your initial application of 2 May 2016, you requested access to:
− the [d]ocuments containing information supplied by the United Kingdom as
evidence of an exceptional situation
, as referred to in paragraph 2 of the
Commission Declaration on the safeguard mechanism regarding the freedom of
movement for workers, provided in the framework of the proposed 'New
Settlement for the UK within the EU' of 19 February 20163;
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
3 The European Commission considers that the kind of information provided to it by the United
Kingdom, in particular as it has not made full use of the transitional periods on free movement of
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
E-mail: [DG SG request email]
− all preparatory documents leading the Commission to reach the conclusion that
'the type of exceptional situation that the safeguard mechanism is intended to
cover exists in the United Kingdom today'
. This shall include the Commission's
own analysis based on labour market statistics and studies by third parties
− [a]ny notes and evidence to back up the declaration supplied to the
representatives of Member States in the European Council, their reactions and
extracts from any minutes of meetings where the safeguard mechanism was
In its initial reply of 27 May 2016, the Task Force for Strategic Issues related to the UK
Referendum (UKTF) refused access to the documents falling under the scope of your
request, based on the exception of Article 4(3), first subparagraph (protection of the
decision-making process) of Regulation 1049/2001.
Through your confirmatory application you request a review of this position. You strive
to demonstrate the existence of an overriding public interest in disclosure of the
requested documents. I will address your arguments in the sections below.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General or service concerned at the initial stage.
Following this review, I regret to inform you that the refusal of the UKTF to grant access
has to be confirmed, based on the exceptions of Article 4(3), first subparagraph
(protection of the decision-making process), Article 4(1)(a), fourth indent (protection of
the financial, monetary or economic policy of the Union or a Member State) and Article
4(1)(b) (protection of the privacy and the integrity of the individual), of Regulation
1049/2001, as explained below.
2.1. Protection of the decision-making process
Article 4(3), first subparagraph of Regulation 1049/2001 provides that [a]ccess 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.
workers which were provided for in recent Accession Acts, shows the type of exceptional situation that
the proposed safeguard mechanism is intended to cover exists in the United Kingdom today
Council conclusions of 18-19 February 2016, Annex VI, Declaration of the European Commission,
The documents which you seek to obtain contain non-public considerations and
exchanges. They reflect preliminary opinions from Member States and different options
discussed in relation to sensitive matters concerning a possible new settlement for the
United Kingdom within the EU. The documents include negotiation positions and
supporting arguments, including non-public data.
While the documents requested were drawn up in the context of the establishment of a
new settlement for the United Kingdom within the EU, and the latter ceased to exist
following the outcome of the UK referendum of 23 June 2016, a new decision-making
process has started which would be seriously undermined if these documents were
disclosed. Indeed, the Commission's (and more broadly, the Union's) decision-making
process concerning the preparation of the negotiations with the United Kingdom on the
arrangements for the latter's withdrawal from the Union is ongoing (hereinafter, 'the
After this preparatory period, Article 50 of the Treaty on the European Union sets out the
procedure to be followed if a Member State decides to leave the Union. Therefore,
another decision-making process concerning the actual negotiations with the United
Kingdom will start once the Article 50 process is triggered by a notification from the
The issues discussed in the documents requested are relevant in the context of the current
decision-making process regarding the preparation of the negotiations, and beyond.
Disclosure of any documents, in part or in full, which contain preliminary reflections and
negotiation positions as described above, would significantly restrict the Commission's
and the Member States' ability to act unrestrainedly in its future discussions in the
context of Article 50 TEU. This, in turn, would seriously undermine the Commission's
and the Member States' margin of manoeuver in the future negotiations and, hence, its
decision-making process concerning the preparation of the negotiation and the actual
negotiation of the arrangements for the withdrawal of the United Kingdom from the
Union. It would also potentially result in the content of these documents being
misunderstood or misused, thereby impairing the serenity of the ongoing decision-
The sensitive and unprecedented process of preparing and conducting negotiations with
the United Kingdom on the arrangements for the latter's withdrawal from the Union does
indeed merit thorough reflection. To that end, the Commission and the Member States
should remain free to undertake preliminary reflections without any external interference.
I refer in this regard to the recent judgement of the General Court in Joint Cases T-
424/14 and T-425/14, where the Court has acknowledged the existence of a general
presumption that access to such preliminary documents is to be refused:
[…] for the purposes of applying the exception laid down in the first subparagraph of
Article 4(3) of Regulation No 1049/2001, the Commission is entitled to presume, without
carrying out a specific and individual examination of each of the documents drawn up in
the context of preparing an impact assessment, that the disclosure of those documents
would, in principle, seriously undermine its decision-making process for developing a
[…] it must be held that the general presumption may apply for as long as the
Commission has not made a decision regarding a potential policy proposal, that is to
say, until a policy initiative has been, depending on the circumstances, either adopted or
Whilst this judgment specifically concerned documents drafted in the framework of the
completion of an impact assessment, the reasoning of the Court applies, mutatis
, to other documents drafted as part of preliminary reflections and discussions
on possible policy options, especially where they are relevant in the context of
discussions on the sensitive issue of the negotiations pursuant to Article 50 TEU.
Furthermore, some of the documents requested originate from the UK authorities. Public
disclosure of the information provided by the UK authorities, in confidence, on issues
which will be relevant in the future negotiations, would seriously undermine the
Commission's (and more broadly, the Union's) decision-making process concerning the
preparation and conduct of the future negotiations. Indeed, in order to conduct the future
negotiations with the United Kingdom effectively, a climate of mutual trust between the
sides must be ensured throughout this sensitive and unprecedented process and earlier
negotiation positions relevant for future discussions must remain confidential.
The British Prime Minister May publicly announced that the UK Government would
formally notify the European Council of the UK's intention to withdraw from the Union
by the end of March 2017. The risk that public disclosure of the information contained in
the documents would negatively influence the preparation and future negotiations with
the authorities of the United Kingdom is reasonably foreseeable and not purely
Consequently, I conclude that access to the requested documents has to be refused, based
on Article 4(3) (protection of the decision-making process) of Regulation 1049/2001.
2.2. Protection of the financial, monetary or economic policy of the European
Union or a Member State
Article 4(1)(a), fourth 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
[...] the financial, monetary or economic policy of the
Union or a Member State.
4 Judgement of the General Court of 13 November 2015 in Joined Cases T-424/14 and T-42514,
ClientEarth v Commission
, paragraphs 97 and 99.
As explained above, the documents requested include earlier negotiation positions and
supporting arguments, including non-public data, on delicate matters which are relevant
throughout the process of preparing, and conducting, the future negotiations with the
United Kingdom. Disclosure of any documents reflecting this information would give
rise to undue speculation and premature conclusions as regards sensitive issues which
touch upon the heart of the European integration, including the functioning of the internal
market. This, in turn, would not only pose a threat to the financial, monetary and
economic stability of the European Union, but also to that of individual Member States.
2.3. Protection of privacy and the integrity of the individual
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
and the integrity of the individual, in particular in accordance with Community
legislation regarding the protection of personal data
The documents requested contain the names of individuals5. These data constitute
personal data within the meaning of Article 2(a) of Regulation 45/20016, which defines
personal data as any information relating to an identified or identifiable natural person
[…]; an identifiable person is one who can be identified, directly or indirectly, in
particular by reference to an identification number or to one or more factors specific to
his or her physical, physiological, mental, economic, cultural or social identity
In consequence, the public disclosure of these data in the requested documents would
constitute processing (transfer) of personal data within the meaning of Article 8(b) of
In accordance with the Bavarian Lager
ruling7, when a request is made for access to
documents containing personal data, Regulation 45/2001 becomes fully applicable.
According to Article 8(b) of that Regulation, personal data shall only be transferred to
recipients if the recipient establishes the necessity of having the data transferred and if
there is no reason to assume that the data subject's legitimate interests might be
prejudiced. Those two conditions are cumulative.8 Only if both conditions are fulfilled
and the processing is lawful in accordance with the requirements of Article 5 of
Regulation 45/2001, can the processing (transfer) of personal data occur.
I would also like to bring to your attention the recent judgment in the ClientEarth
where the Court of Justice ruled that whoever requests such a transfer must first establish
that it is necessary. If it is demonstrated to be necessary, it is then for the institution
concerned to determine that there is no reason to assume that that transfer might
prejudice the legitimate interests of the data subject. If there is no such reason, the
5 Including Commission officials not forming part of senior management.
6 Regulation (EC) No 45/2001 of the European Parliament and 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.
Judgment in Commission v Bavarian Lager
, case C-28/08 P, EU:C:2010:378.
8 Ibid., paragraphs 77 to 78.
transfer requested must be made, whereas, if there is such a reason, the institution
concerned must weigh the various competing interests in order to decide on the request
.9 I refer also to the Strack
case, where the Court of Justice ruled that the
Institution does not have to examine by itself the existence of a need for transferring
Neither in your initial, nor in your confirmatory application, have you established the
necessity of, nor any interest in, disclosing any of the above-mentioned personal data.
Therefore, I have to conclude that the transfer of personal data through the disclosure of
the requested documents cannot be considered as fulfilling the requirement of Regulation
45/2001. Consequently, the use of the exception under Article 4(1)(b) of Regulation
1049/2001 is justified, as, based on the information at my disposal, there is no need to
publicly disclose the personal data included therein and it cannot be assumed that the
legitimate rights of the data subjects concerned would not be prejudiced by such
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(3) (protection of the decision-making process) of
Regulation 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 argue that [t]he assertion that there is an
exceptional pressure on UK public services caused by EU migration will have
implications after the referendum in the case both of a remain or a leave vote in the
context of discussions on the relationship between the UK and the rest of the EU, and the
fate of EU workers currently in the UK. Therefore the overwhelming public interest in
seeing and evaluating this evidence will remain after the 23rd June
While I agree that there may be a public interest in granting access to the supporting
arguments and evidence
you refer to, I consider that, in this case, the public interest is
best served by avoiding taking any measure such as disclosing these documents which
would negatively affect or undermine the above mentioned decision-making processes
concerning the preparation of the future negotiations with the United Kingdom on the
arrangements for the latter's withdrawal from the Union, and the actual negotiations. It is
in the public's interest that the negotiations pursuant to Article 50 TEU are conducted
In consequence, I consider that, in this case, there is no overriding public interest that
would outweigh the interest in safeguarding the protection of the ongoing decision-
making process based on Article 4(3) of Regulation 1049/2001.
9 Judgment in ClientEarth and PAN Europe v EFSA
, case C-615/13 P, EU:C:2015:489,
10 Judgment in Strack v Commission
, case C-127/13 P, EU:C:2014:2250, paragraph 106.
Please note also that Articles 4(1)(a) and 4(1)(b) of Regulation 1049/2001 do not include
the possibility for the exceptions defined therein to be set aside by an overriding public
In accordance with Article 4(6) of Regulation 1049/2001, I have considered the
possibility of granting partial access to the documents requested. However, no
meaningful partial access is possible without undermining the interests described above.
Consequently, I have come to the conclusion that the documents requested are covered in
their entirety by the invoked exceptions to the right of access.
MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress that are available
against this decision, that is, judicial proceedings and complaints to the Ombudsman
under the conditions specified respectively in Articles 263 and 228 of the Treaty on the
Functioning of the European Union.
For the Commission