Ref. Ares(2016)3063115 - 29/06/2016
Ref. Ares(2016)4162935 - 05/08/2016
EUROPEAN COMMISSION
Budget
Central Financial Service
BUDG.D2 - Programme management and implementing contracts
Secretariat-General
Directorate B - Institutional and Administrative Policies
SG.B.4-Transparency
GUIDANCE NOTE ON
ACCESS TO INFORMATION AND DOCUMENTS
RELATED TO PROCUREMENT AND GRANT AWARD PROCEDURES
1. INTRODUCTION, DEFINITIONS AND LEGAL BASES
The objective of this document is to provide guidance to services on how to deal with requests to
access documents or information in relation to grants and procurement1 directly managed by the
Commission or executive agencies, so indirect management is not covered. This guidance note does
not deal with the obligations of publication under grants and procurement.
In procurement and/or grant award procedures unsuccessful grant applicants, candidates or tenderers
often request access to documents and/or to information concerning these procedures. The Financial
Regulation (‘FR’) and its Rules of Application (‘RAP’) include specific provisions on the information
that can be given to participants at different stages of the procedure. Such access is considered to be
privileged access to information, because not everybody, but only specific parties can ask for it. You
can find details about this kind of access under point 2.
Any citizen of the Union, and any natural or legal person residing or having its registered office in
Member State, has the right to request public access to documents of the institutions according to
Regulation No 1049/2001. Contrary to the privileged access which can be granted to specific parties,
access to documents according to Regulation No 1049/2001 is a general right. It does not depend on
whether the applicant was a candidate, a tenderer or a grant applicant. Furthermore, a document
released under Regulation 1049/2001 to an applicant for access to documents is, legally speaking,
accessible
erga omnes. You can find details about access to documents according to Regulation
No 1049/2001 under point 3.
Grant applicants, candidates or tenderers often base their requests for access to documents and/or
information in procurement and/or grant procedures both on the FR and its RAP and on Regulation
No 1049/2001.
The legal basis on which you reply (FR and RAP or Regulation 1049/2001 or both) depends on the
specific circumstances and on the wording of the applicant's request. If the applicant is entitled to
privileged access under the FR and RAP and not explicitly refer to Regulation 1049/2001, the
application can be handled exclusively under the provisions of the FR and RAP. If, in addition to that,
1
For more information on grants and procurement procedures, please consult:
Gra
nts: https://myintracomm.ec.testa.eu/budgweb/EN/imp/grants/Pages/imp-090_grants.aspx
Procurem
ent: https://myintracomm.ec.testa.eu/budgweb/EN/imp/procurement/Pages/imp-
080_procurement.aspx
1
Regulation 1049/2001 is invoked, the request will have to be assessed also under this angle. In case of
doubt, you can ask the applicant to clarify.
1.1. DEFINITIONS
For the purpose of this guidance, the following terms are used:
‘Information’ is any news, knowledge or data
not necessarily available in written, visual, oral,
electronic or any other form. Requests for information may concern only news, knowledge or data
not to be found in a single document or a number of items that may be found in several documents
and that require a certain level of aggregation;
‘Document’ is, according to Article 3(a) of Regulation No 1049/2001, ‘any content whatever its
medium (written on paper or stored in electronic form or as a sound, visual or audio-visual
recording) concerning a matter relating to the policies, activities and decisions falling within the
institution’s sphere of responsibility’;
‘Applicant for access to documents’ means any person who requests documents under
Regulation No 1049/2001;
‘Grant applicant’ means a person who has submitted a grant application in response to a call for
proposals;
‘Candidate’ means a person who has submitted a request for participation in a procurement
procedure in two steps;
‘Tenderer’ means a person who has submitted a tender in response to a procurement procedure;
‘Contractor’ means a person who has
signed a procurement contract;
‘
Beneficiary’ means a person who has
signed a grant agreement.
This note refers to grant applicants, candidates, tenderers, contractors and beneficiaries as
interested parties. Their rights depend on the specific provisions of the FR and the RAP.
1.2. LEGAL BASES
1.2.1. THE TREATY
The principle of transparency and openness is enshrined in the Treaty on the Functioning of the
European Union (TFUE)2 and in the Charter of Fundamental Rights of the European Union (the
Charter).
Article 42 of the Charter provides that
[a]ny citizen of the Union, any natural or legal person
residing or having its registered office in a member State, has a right of access to documents of
the institutions, bodies, offices and agencies of the Union, whatever their medium.
Article 15(3) TFEU provides that
[a]ny citizen of the Union, and any natural or legal person
residing or having its registered office in a Member State, shall have a right of access to
documents of the Union’s institutions, bodies, offices and agencies, whatever their medium,
subject to the principles and the conditions to be defined in accordance with this paragraph (...).
These conditions are defined in Regulation No 1049/20013.
2 Official Journal C 326, 26.10.2012.
3
Regulation No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public
access to European Parliament, Council and Commission documents (OJ L 145 of 31.05.2001, p.43). See
also, as regards the right of public access to environmental information, Regulation (EC) No 1367/2006 of
the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the
Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to justice
in Environmental Matters to Community institutions and bodies (OJ L 264, 25.09.2006, p. 13).
2
In addition, the Commission applies its own Detailed Rules for the Application of Regulation
No 1049/2001 contained in Commission Decision 2001/9374 (Commission Rules of Procedure).
1.2.2. THE FINANCIAL REGULATION AND ITS RULES OF APPLICATION
Although applicants for access to information or documents related to procurement or grant
award procedures may base their requests on either the FR/RAP, Regulation No 1049/2001 or
both, please be aware that ‘privileged access to information for interested parties’ and ‘public
access to documents’ are governed by different rules.
The provisions relating to privileged access to information for interested parties are laid down in
the Financial Regulation (FR)5 and its Rules of Application (RAP)6:
Concerning interested parties in
procurement procedures, Article 113(2) FR and Article
161(1) RAP impose upon the contracting authority an obligation to inform all candidates or
tenderers of the grounds on which the award or rejection decision was taken. In addition,
Article 113(3) FR and Article 161(2) RAP also provide for a specific right of access to
information, upon written request by tenderers who are not in a situation of exclusion and
whose tenders are compliant with the tender specifications. Those tenderers can have access
to the name of the successful tenderer and of the characteristics and relative advantages of the
successful tender.
Concerning interested parties in
grant award procedures, Article 133(3) FR and Article 205
RAP impose to the contracting authority an obligation to inform grant applicants of the award
or rejection decision and its justification.
1.2.3. REGULATION NO 1049/2001 ON PUBLIC ACCESS TO DOCUMENTS
Requests for
public access to documents (introduced by any natural or legal person) are
governed by Regulation No 1049/2001 which contains the principles, conditions and limits to the
right of access to Parliament, Council and Commission documents.
The detailed rules of application of Regulation No 1049/2001 are laid down by Commission
Decision 2001/937.
For the Commission, the Secretariat-General (SG.B4) provides a website with guidance on how
to deal with requests under Regulation No 1049/2001:
https://myintracomm.ec.europa.eu/sg/docinter/Pages/index.aspx
Administrative and legal coordinators for access to documents are at your disposal in each DG.
They can provide help and guidance when dealing with initial requests for access to documents7.
For administrative and legal questions of horizontal importance the Transparency Unit (SG.B.4)
in the Secretariat-General provides assistance to the administrative and legal coordinators of the
DGs.
4
Commission Decision 2001/937 of 5 December 2001 amending its rules of procedure (OJ L 345 of
29.12.2001, p. 94).
5 Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012
on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC,
Euratom) No 1605/2002 (OJ L 298 of 26.10.2012, p. 1) as amended.
6 Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of
Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial
rules applicable to the general budget of the Union (OJ L 362, 31.12.2012, p. 1) as amended.
7
https://myintracomm.ec.europa.eu/sg/docinter/documents/liste_corresp_fr.pdf
3
Regular courses are organised by SG.B4 for all officers interested in deepening their knowledge
on access to documents (in
Syslog). Specialised courses and Legal Seminars are organised by
SG.B4 for administrative and legal coordinators. Tailored trainings for DGs are available upon
request to the SG.B4 Unit.
1.2.4. THE CODE OF GOOD ADMINISTRATIVE BEHAVIOUR
In the Commission, requests for
information (not documents) are governed by the Code of Good
Administrative Behaviour8.
For practical implementation, please consult DG HR intranet9.
Unit SG.B3 is responsible for following th
e complaints procedure foreseen by the Commission’s
Code of Good Administrative Behaviour, including for the drafting of corresponding answers in
consultation with the Legal Service.
2. PRIVILEGED ACCESS TO INFORMATION IN PROCUREMENT AND GRANT AWARD
PROCEDURES
This part of the guidance (point 2) concerns solely access to information, which is not intended to be
disclosed to the general public, by interested parties in the framework of procurement and grant award
procedures, as provided for in the FR/RAP.
Other basic acts may provide for privileged access, for instance by the Programme Committee to the
award decision for certain grants. These rights of access are specific to each basic act and are not
covered by this note.
2.1. PRIVILEGED ACCESS TO INFORMATION OF INTERESTED PARTIES IN PROCUREMENT
PROCEDURES (ART. 113 FR)
2.1.1. INFORMATION ON REJECTED REQUESTS TO PARTICIPATE OR TENDERS
Article 113(2) FR provides that [
t]he contracting authority shall notify all candidates or tenderers
whose requests to participate or tenders are rejected, of the grounds on which the decision was taken.
In addition, the second subparagraph of Article 161(1) RAP provides that [
t]he contracting authority
shall indicate the reasons why the request to participate or tender has not been accepted.
It is therefore an obligation for the contracting authority to provide full information to an unsuccessful
candidate or tenderer about the grounds and the full reasons (usually copied from the evaluation
report) for the decision to reject its request to participate or tender. The candidate or tenderer does not
need to request any of this information in writing and has a right to know from the outset.
To this end, DG BUDG provides
model notification letters which provide for the inclusion of excerpts
from the evaluation report, as well as the duration of the standstill period and the available legal
remedies.
2.1.2. INFORMATION ON THE CHARACTERISTICS AND RELATIVE ADVANTAGES OF THE
SUCCESSFUL TENDER
In addition, Art. 113(3) (a) of the FR provides that
[t]he contracting authority shall inform each
tenderer who is not in an exclusion situation, whose tender is compliant with the procurement
documents and who makes a request in writing, of … the name of the tenderer, or tenderers in the case
8
Commission Decision (EC, ECSC, Euratom) No 2000/633 of 17 October 2000 amending its Rules of
Procedure (OJ L 267 of 20.10.2000, p. 63).
9
https://myintracomm.ec.europa.eu/hr_admin/en/code/Pages/conduct.aspx.
4
of a framework contract, to whom the contract is awarded and, except in the case of a specific
contract under a framework contract with reopening of competition, the characteristics and relative
advantages of the successful tender, the price paid or contract value, whichever is appropriate.
Such information is provided on a
privileged basis, as only the specific parties fulfilling the conditions
indicated in Art. 113(3)(a) of the FR can obtain, upon written request, the said information during the
procurement procedure, before signature of the contract.
If the contracting authority receives such a request, it must provide the information about the
successful tender
as soon as possible and at the latest within 15 days of receipt of the request. The
information includes the name of the tenderer (including the names of the different legal entities in
case of joint offer), the contract price (not unit or detailed prices which are part of the commercial
secrets of the tenderer) or contract value (for framework contracts), the break-down of points and
comments of the evaluation per criterion, the total score and the comparative ranking, exactly as
provided for in the evaluation report. It is therefore strongly recommended to integrate the
corresponding excerpts from the latter into the reply to the information request. However, at this stage
of the procedure, provided full information is given, it is not required to provide the evaluation report
itself before the contract is signed 10.11
Indeed, the evaluation report should contain the full grounds for rejection, so when providing this
information, it is important to provide exactly the reasons written originally in the evaluation report
and not to formulate new ones12.
2.1.2.1.
FRAMEWORK CONTRACTS
In the specific case of
framework contracts (‘FWCs’)
in cascade, a successful tenderer can request
information about the
comparative advantages of successful tenders ranked above it. Thus, the
second ranked tenderer can request information about the first ranked but not about the third, the third
can request information about the first and second tender and the first tenderer cannot request any
information about other tenders.
10 Case T-165/12
Evropaiki dynamiki vs. Commission, para. 50-51.
11 The General Court has judged that the evaluation report does not need to be provided for requests under
Article 113(3) (see Ca
se T-250/05 Evropaïki Dynamics vs. Commission, ECR 2007 page II-00085 at para.
113 as well
as T-63/06, Evropaïki Dynamiki vs. EMCDDA, ECR 2010 page II-00177); it is only necessary to
state the reasons for which the tenderer was rejected. Although a judgement of the General Court (Ca
se T-
59/05 Evropaïki Dynamics vs. Commission, ECR 2008 page II-00157 at para. 134-135, confirmed on appeal
by the Court of Justi
ce C-476/08P, Evropaïki Dynamiki vs. European Commission, ECR 2009 page I-
00207) considered desirable that the Commission systematically provides, to the tenderers which have made
a written request, a copy of the evaluation report from which, if necessary, confidential information has been
removed (i.e. partial access), in following case-law (Case C-560/10 P para 15 and C-462/10 P, paras 38-39)
the Court of Justice found that it does not follow from the wording of the then applicable first subparagraph
of Article 100(2) of the Financial Regulation or of the then applicable third subparagraph of Article 149(3)
of the Implementing Rules, or from the judgment in Case T-59/05
Evropaïki Dynamiki v
Commission, that,
upon written request by an unsuccessful tenderer, the contracting authority is under an obligation to provide
it with a full copy of the evaluation report. This latter approach has been further confirmed by the General
Court in recent Case T-536/11,
European Dynamics v Commission, para 40.
12
Case T-387/08 Evropaiki dynamiki vs. Commission, ECR 2010 page II-00178 at para. 37, Case T-183/00
Strabag Benelux vs. Council, ECR 2003 page II-00135 at para. 57-58, Case T-465/04 Evropaïki Dynamiki
vs. Commission, ECR 2008 page II-00154 at para. 59, T-406/06, Evropaiki dynamiki vs. Commission, ECR
2008 page II-00247 at para. 106-108, T-300/07 Evropaiki dynamiki vs. Commission, ECR 2010 page II-
04521 at para. 59-61 a
nd C-560/10P, Evropaïki Dynamiki vs. European Commission, ECR 2011 page I-
00151 at para. 18, confirming the General’s Court decision.
5
In the case of award of a FWC
with reopening of competition, successful tenderers can request
information about the
characteristics and relative advantages of all successful tenders. Indeed, a
successful tenderer may dispute the award of the FWC to another successful tenderer that would
compete for specific contracts.
In such FWC with reopening of competition, this privileged access to information about competitors
does not apply when reopening the competition between contractors for specific contracts. In this
case, the unsuccessful contractors for specific contracts can only be given the name of the successful
contractor.
2.1.2.2.
INFORMATION ON NEGOTIATION AND DIALOGUES
In case of negotiations or competitive dialogue, tenderers who are not in a situation of exclusion and
whose tenders are compliant with the tender specifications may request in writing information on the
progress of negotiation or dialogue with tenderers (Art. 113(3) (b) FR). The contracting authority
should explain the rounds of negotiations/dialogue that have taken place so far. If the
negotiation/dialogue take place in stages, the number of rejected tenders/solutions should also be given
for each stage.
2.1.2.3.
REDACTION OF CERTAIN PARTS
When answering a request for the characteristics and relative advantages of a tender or information on
negotiation or dialogue, information cannot be provided if the (…) disclosure would impede law
enforcement, would be contrary to the public interest or would prejudice the legitimate commercial
interests of economic operators or might distort fair competition between them (Article 113(3), second
subparagraph FR), or would be contrary to the provisions applicable to the protection of personal data
(see section 4.3). This must be checked on a case-by-case basis, particularly if the comments of the
evaluation committee refer to parts of the technical offer that could be considered as business secrets.
If this happens, the relevant parts must be redacted.
2.2. INFORMATION OF INTERESTED PARTIES IN GRANT AWARD PROCEDURES (ARTICLE
133(3) FR)
According to Article 133(3) of the Financial Regulation, upon adoption of the award decision, all
applicants should be informed in writing on whether their proposal has been accepted or rejected:
-
Where applications are accepted, this notification must state the maximum amount of the grant
to be awarded to the applicant;
-
Where applications are rejected, the notification must
state the reasons for rejection with
reference to the exclusion, eligibility, selection and award criteria.
Such notifications are based on the evaluation report and the award decision and should be carefully
formulated, as they can serve as a basis for a potential complaint or appeal against the decision.
3. PUBLIC ACCESS TO DOCUMENTS (REGULATION No 1049/2001)
The principle enshrined in Regulation No 1049/2001 on public access to documents is that all
documents held by the institution are covered by its material scope; therefore no internal documents
relating to the activities of the institution are,
a priori, excluded from its scope.
However, the right of access can be limited by the exceptions of Article 4 of the Regulation, pertaining
to the protection of legitimate public or private interests.
All documents made available under Regulation No 1049/2001 enter the public domain and are
thereby available to everyone (
erga omnes). It follows that all natural or legal persons requesting
public access to a document under Regulation No 1049/2001, irrespective of whether or not they are
candidates, tenderers or grant applicants, have equal rights of access under this Regulation. Therefore,
6
their particular interests as candidates, tenderers or grant applicants cannot be taken into account under
Regulation No 1049/2001.
An individual assessment must be carried out in each case, to assess if one or several of the exceptions
of Article 4 of Regulation No 1049/2001 applies to a set of documents, a particular document or parts
thereof. In case of a refusal, partial access must always be considered.
Detailed information on how to deal with access-to-documents requests is provided in GoPro
(GoPro
on access to documents) and the
SG.B.4 website.
4. EXCEPTIONS TO THE RIGHT OF ACCESS POTENTIALLY APPLICABLE TO PROCUREMENT AND
GRANTS-RELATED DOCUMENTS
The exceptions that are usually considered in case of procurement and grants-related documents, or
parts thereof, are listed below.
Depending on the specific circumstances of each case other exceptions could nevertheless be
applicable. In all cases, a concrete and individual assessment of the documents falling within the scope
of a specific request must be carried out.
4.1. EXCEPTION ‘COMMERCIAL INTERESTS, INCLUDING INTELLECTUAL PROPERTY’
Article 4(2), first indent of the Regulation foresees 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, including intellectual property.
Given the nature of the documents relating to procurement and grant award procedures, the exception
of access relating to commercial interests of natural or legal persons, including those relating to
intellectual property (Article 4(2), first indent of the Regulation), is the exception most likely to apply.
Indeed, information relating to methodologies, know-how, specific pricing or any other information
carrying a commercial value is usually reflected in the tender or grant application for the purpose of
responding to a grant or procurement award procedure.
Disclosure, to the general public, of such information relating to the execution of a service or of an
action would undermine the protection of the relevant natural or legal person’s expertise, strategy and
creativity and thus their commercial strength. It must be noted that, in cases of grant applications, the
exception relating to commercial interests can in principle be applied to non-commercial entities, such
as non-profit associations. The General Court also accepted this exception for a university13. The
General Court has acknowledged the existence of a general presumption in cases concerning the bids
submitted by tenderers in a public procurement procedure in the event that a request for access is made
by another tenderer14. This was confirmed again recently by the General Court15. This exception can
even apply to the Commission, for example to its own commercial interests in concluding contracts.
If it is clear that the requested document is not covered by any exception and therefore should be
disclosed (for example, the award decision after the contract signature), the Commission discloses the
document.
13
T-439/08 Agapiou Joséphidès vs. Commission and EACEA, §127-128.
14 Judgment of 29 January 2013 in Case T 339/10 and T 532/10, Cosepuri vs EFSA EU:T:2013:38, paragraph
101.
15 Judgment of the General Court of 26 May 2016 in Case International Management Group vs Commission
(not yet reported), para. 30.
7
On the contrary, if, after a concrete assessment, the Commission deems that the disclosure of
commercial information would undermine an entity’s commercial interests, access to the respective
parts of the document must be refused.
In case of doubt as regards documents originating from a third party, the third party needs to be
consulted according to Article 4(4) of Regulation No 1049/2001. This means in practice that you first
need to assess whether it is clear that the requested document(s) shall or shall not be disclosed. The
third-party author must be consulted regarding the possibility to grant partial or full access to the
document(s) requested only if it is not clear that the document(s) shall or shall not be disclosed.
No consultation is necessary in the following three cases:
- If access to the content of the documents originating from third parties manifestly does not affect
one of the protected interests under the exceptions provided for in Article 4 of Regulation
1049/2001. Correspondence (letters, e-mails) from third parties can normally be made public,
unless specific commercially sensitive elements, personal data of staff or other sensitive elements
warrant protection under one of the exceptions of Article 4, and without prejudice to the need to
consult in case of doubt;
- If the documents are clearly covered by one or several exceptions (such as documents containing
commercially sensitive data);
- If the third-party documents are covered by a general presumption of non-disclosure, recognised
by the case-law of the ECJ (for more information see the case-law table available on the
SG.B4
website).
In all other cases, the third-party author must be consulted (Article 4 of the Regulation; Article 5 of the
internal rules stipulated in Commission decision 2001/937). Consultations of third parties should
enable the latter to explain their position if possible with reference to the exceptions set out in Article
4 of Regulation No 1049/2001.
Please note that when dealing with the request at the initial level, the DGs/services should not grant
access to the documents concerned, or parts thereof, in cases where the author objects to disclosure
and justifies the objection, if possible with reference to the exceptions provided for in Article 4,
paragraph 1 or 2 of Regulation No 1049/2001. Where no such justification is given, the service
concerned should insist that the third-party author provides one. The fact that a third party objected is
not in itself an exception that can be invoked, as the refusal should always be argued by the
Commission services on the basis of exceptions laid down in Article 4 of Regulation 1049/2001. The
decision whether the document is disclosed remains with the Commission.
In case of Member State opposition, a reference should be made both to Articles 4(4) and 4(5) and to
the prima facie assessment of exceptions invoked by the Member State. In these cases, the
Commission checks whether the explanations put forward are manifestly wrong.
Practical details on the consultations can be found in SG.B4's guidance on the current administrative
practice.
In the context of procurement and grant award procedures refusals on the basis of the exception
relating to commercial interests can, for example, be substantiated by the risk that disclosure of
technical and/or detailed financial information would be used by competitors in future similar
procedures, to the detriment of the natural or legal persons concerned.
The evaluation report is in principle partially accessible to the public after the end of the procurement
or grants award procedure, i.e. after contract or grant agreement signature. The scores, ranking,
application of the ranking formula and the global price should be accessible. Only the names of natural
8
persons and commercially sensitive information (including details on pricing) should be redacted.
Therefore, special attention should be given when drafting the report, so as to avoid including, as far
as possible, any sensitive commercial information, the disclosure of which may be detrimental to the
legitimate commercial interests of tenderers or candidates while at the same time ensuring the quality
of the evaluation report that has to give a clear overview of the merits and weaknesses of the different
proposals or tenders.
The names of legal persons that participated in a call for tenders or a call for proposals can be
protected if the rejection was based on a comparison of their merits, as the divulgation of these names
could undermine the reputation of the company or organisation concerned (but this has to follow from
the specific contents of the documents concerned).
If, on the other hand, the rejection was based only on fulfilling (or not) purely objective criteria (for
instance, eligibility criteria such as the absence of a European character of an association), the
respective parts of the documents cannot be protected under Article 4(2), first indent of Regulation
1049/2001.
Moreover, the exception relating to commercial interests is an expression of the Commission’s
obligation of professional secrecy which flows from Article 339 TFEU. This means that the
Commission must take all necessary precautions to ensure that the protection of information about
undertakings covered by professional secrecy and other confidential information is not undermined. It
applies in particular to (…) information about undertakings, their business relations or their cost
components.
4.2. EXCEPTION ‘PRIVACY AND THE INTEGRITY OF THE INDIVIDUAL’
Article 4(1)(b) of Regulation No 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.
The above-mentioned exception must be invoked in the context of procurement and grant award
procedures if public disclosure of personal data appearing in the procurement and grant-related
documents were to undermine the privacy and integrity of natural persons. This flows from the
wording of Article 4(1)(b), which refers explicitly to the applicable data protection rules which
become applicable.
Indeed, where a request based on Regulation No 1049/2001 seeks to obtain access to personal data
included in documents held by the Commission, the provisions of Data Protection Regulation
No 45/200116 become applicable in their entirety17.
This means that the applicant for access to documents must substantiate a need to obtain the personal
data concerned, based on express and legitimate justifications or convincing arguments18. If this
condition is fulfilled19, then the institution examines if the transfer of the requested personal data
would prejudice the legitimate rights of the individuals concerned.
These conditions are cumulative. However, the applicant has to first prove the necessity of the
transfer. If it is demonstrated to be necessary, it is then for the institution to determine whether there is
16
Regulation (EC) No 45/2001 of 18 December 2000 on the protection of individuals with regard to
processing of personal data by the Community institutions and bodies and on the free movement of such
data (OJ L 8 of 12.01.2001, p.1).
17
Case C-28/08 P Bavarian Lager, ECR 2010 page I-06055 at para. 57 and 59-64.
18 Idem, para. 78.
19 Judgment of the Court of Justice of 2 October 2014 in
case C-127/13, Strack vs Commission, para. 108.
9
no reason to assume that that transfer might prejudice the legitimate interests of the data subject. If
there is no such reason, the 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 for
access20.
A general reference to the principle of transparency is often not sufficient to substantiate a need to
obtain the personal data concerned21. Instead, there should be concrete reasons invoked in order to
justify the proportionality of the transfer and to consider that the transfer is the most appropriate and
proportionate measure for attaining the aim put forward by the applicant22
The privacy and integrity of natural persons may also be at stake where the document requested
contains names and/or other personal data of grant applicants, candidates, tenderers or other
individuals (e.g. CVs, email addresses, etc.). In such cases, the names and CVs concerned must be
redacted on the basis of the exception of Article 4(1)(b), unless the two above-mentioned conditions
(substantiation of a need and no prejudice to the individuals’ legitimate rights) are fulfilled. In
practice, there will be partial access to the rest of the document. The same risks exist for the names of
firms only in so far as the official title of the firm identifies one or more natural persons23.
4.3. ‘DECISION-MAKING PROCESS’ EXCEPTION
Article 4(3), first subparagraph of Regulation No 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 (…).
Article 4(3), second subparagraph of Regulation No 1049/2001 provides that [a]ccess to a document
containing opinions for internal use as part of deliberations and preliminary consultation 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 (…).
An exception to the right of access may have to be invoked in order to protect the institution’s decision-
making process from serious harm (Article 4(3), first subparagraph of Regulation No 1049/2001 for
ongoing public procurement or grant award procedures, or Article 4(3), second subparagraph for closed
procedures).
In case of ongoing procurement or grant award procedures, access to the procurement and grant award
documents must be refused if their disclosure would seriously affect the ongoing decision-making process
because of likely undue external pressure. This will normally be the case for documents reflecting
opinions of the evaluation committee, of external experts as well as for the tenders and grant proposals
submitted to the Commission.
Individual evaluation reports by experts or members of the evaluation committee relate to a very early
step within an evaluation process resulting in a recommendation for award and, subsequently, the
adoption of the final decision regarding the award/rejection of a grant or contract and can be protected
according to Article 4(3) first subparagraph of Regulation No 1049/2001. They can also contain personal
data according to Regulation No 45/2001, if a natural person is or could be identified through those data.
20 Judgment of the Court of Justice of 16 July 2015 in
case C-615/13 P, ClientEarth vs EFSA, para. 47.
21 Judgment of the Court of Justice of 2 October 2014 in
case C-127/13, Strack vs Commission, para. 108.
22 See Judgment of the Court of Justice 16 July 2015 in case
C-615/13 P, ClientEarth vs EFSA, para 53.
23 Judgment of the Court (Grand Chamber) of 9 November 2010,
Volker und Markus Schecke GbR (C-92/09)
and Hartmut Eifert (C-93/09) vs Land Hessen, para. 53.
10
In principle, individual comments or evaluation grids filled out by the individual members of an
evaluation committee are not attached to the corresponding evaluation report because the evaluation is
an opinion of the committee as such, and not a sum of the opinions of its separate members.
Concerning the individual assessment sheets drawn up by the members of the evaluation committee,
the General Court has stated that the public interest in transparency cannot be considered superior to the
principle of independence of the members of the evaluation committee and cannot, therefore, justify
disclosure of the evaluation grids24.
In specific cases (e.g. under certain grant programmes or in some IT systems), the individual assessment
sheets are registered and stored either with the evaluation report or separately. Individual evaluations
which are stored in an IT Tool, for example in the Horizon 2020 system, are, in principle, not accessible
(protection of the decision making process and if applicable, protection of privacy and integrity of the
individual).
Also in case of closed procedures, opinions for internal use expressed as part of deliberations and
preliminary consultations, such as the individual opinions of the evaluation committee members can be
protected under Article 4(3) (in that case: second subparagraph) of Regulation No 1049/2001. As a
precondition, it must be reasonably foreseeable that their disclosure would seriously undermine the
decision-making process, even after the decision is taken.
4.4. OVERRIDING PUBLIC INTEREST
The exceptions on the grounds of ‘commercial interests’ (Article 4(2), first indent of Regulation
No 1049/2001) and ‘decision-making process’ (Article 4(3) of Regulation No 1049/2001) are not
absolute. They apply only ‘unless there is an overriding public interest in disclosure’. This implies that,
even where the conditions for applying one of the exceptions have been fulfilled, the documents to which
access has been requested must nonetheless be disclosed where this is justified by an overriding public
interest.
In this connection, it is necessary to check, for each document involved, whether:
(1) Disclosure is in the public interest or, rather, in the interest of a private party;
(2) Where there is a public interest, it is sufficiently important to override the interest which the
exception in question is designed to protect (e.g. the protection of the commercial interests of
the natural and legal persons concerned or the decision-making process).
Where procurement and grant award procedures are concerned, requests for access are generally
submitted by one of the unsuccessful tenderers or grant applicants in an attempt to obtain information
to understand why their tender or grant application was not selected. In such cases, the interest at stake
is clearly private and cannot under any circumstances constitute an overriding public interest that
would justify the disclosure of the document in question.
In practice, it will be difficult to substantiate an overriding public interest which is sufficiently
important to override the interest(s) protected, as the Financial Regulation provides the necessary
procedural guarantees to ensure that the procurement and grant award procedures take place under the
fairest conditions possible.
A mere general interest of the public in obtaining the document concerned or in assessing whether the
procedure was conducted fairly will normally not constitute in itself a public interest that can override
the need for protection of the legitimate commercial interests of the natural and legal persons
24 Judgment of the General Court of 22 May 2012 in ca
se T-6/10, Sviluppo Globale vs Commission, para. 88.
11
concerned or the Commission’s decision-making process25. Nor can an applicant’s personal interest in
obtaining access to the document concerned (for instance, to finalise a master’s thesis, initiate court
proceedings or verify whether his/her tender or grant application was rightfully rejected) constitute an
overriding public interest.
Please note that the exception of 4(1)(b) of Regulation No 1049/2001 (exception ‘privacy and the
integrity of the individual’) cannot be set aside by an overriding public interest.
25 Judgment of the Court of Justice of 21 September 2010 in
case C-514/07, Sweden and Others vs API and
Commission , para. 156-159.
12
ANNEX 1
ACCESS TO DOCUMENTS (REG. 1049/2001) RELATED TO PROCUREMENT PROCEDURES
The listed documents do not necessarily appear in all procedures.
OP = Open Procedure
RP = Restricted Procedure (1st step: candidates send a request to participate; 2nd step: invited candidates submit
tenders)
CPN: Competitive Procedure with Negotiation (1st step: candidates send a request to participate; 2nd step: invited
candidates submit tenders)
NP = Negotiated Procedure (low or middle value or without publication of contract notice under Article 134 RAP)
The proposed practices listed below can help the services in their analysis. It is imperative to carry out a
concrete assessment of the document(s) on a case-by-case basis by reference to the guidance note.
Reading the
table is not sufficient in order to assess if a document should or should not be disclosed.
NB: under the ‘privacy and integrity’ exception, the applicant for access to documents must justify the necessity of
transfer of personal data in accordance with Regulation No 45/2001
Document requested
Timing
Usual administrative practices
Launch of the procurement procedure
Pre-information notice
From the moment of publication
Accessible (document published)
Justification for using a NP
After the procedure is launched (the
Accessible
decision to use a NP is already taken)
Contract notice
From the moment of publication
Accessible (document published)
Submission and opening of requests to participate
List of candidates who
During procedure/after submission of
Not accessible (decision making
submitted a request to
requests to participate (1st step for RP
process exception), as disclosure, at
participate in a RP or CPN or
or CNP)
this stage, may encourage collusion
NP
of candidates
After deadline for receipt of tenders
Accessible except for the names of
has elapsed (end of 2nd step) or
natural persons or names of firms
cancellation of the procedure
identifying one or more natural
persons (privacy exception)
Requests to participate
During procedure/after contract
Not accessible in principle (privacy
signature or cancellation of the
and/or commercial interests
procedure
exceptions);
Written record of the opening of
After deadline for receipt of tenders
Partially accessible: the names of
requests to participate (1st step
has elapsed (end of 2nd step)
individuals and of the members of
of RP or CPN or NP)
the opening committee are
normally redacted (privacy
exception or decision-making
process)
13
Written record of the evaluation
After contract signature or cancellation Partially accessible: the names of
of requests to participate (1st
of the procedure
individuals and the names and
step RP or CPN or NP)
individual opinions of the
evaluators (privacy exception or
decision-making process
exception), as well as passages
whose disclosure would harm
candidates’ commercial interests
(commercial interests exception),
are normally redacted
Procurement documents (notice,
As soon as the procedure is launched
OP, RP, CPN, NP: Procurement
invitation to tender, tender
documents are accessible after
specifications and draft contract)
redaction of personal data (privacy
exception) except for the parts
thereof that are confidential, in
particular for tender specifications
in RP or NP, if the choice of the
procedure reflects a specific
concern and a need for
confidentiality (for example for
security reasons).
Confidential parts of the
procurement documents are not
accessible according to Art. 153(1)
RAP
Additional information,
As soon as the information is
OP, RP, CPN, NP: Accessible
questions & answers
published
(documents published) (after
redaction of personal data )
As soon as the information has been
All procurement documents are
made available to candidates or
accessible except for the
tenderers
confidential parts according to Art.
153(1) RAP (see above)
Submission and opening of tenders
Received tenders
Normally not accessible
(commercial interests exception)
Decision appointing the
After contract signature or
Partially accessible: the names of
committees for the opening and
cancellation of the procedure
members of the committees
evaluation of tenders
(privacy exception and/ or decision-
making process exception) are
normally redacted
Written record of the opening of
As soon as the written record is drawn-
Partially accessible: the names of
tenders (OP + 2nd step RP, CPN,
up
individuals, members of the
NP)
opening committee and
representatives of the tenderers
(privacy exception or decision-
making process exception) are
normally redacted
14
Evaluation of tenders
Declarations on the absence of
As soon as they are drawn-up
Partially accessible: the names of
conflicts of interest and
individuals and members of the
confidentiality signed by the
opening
committee
(privacy
evaluators
exception
or
decision-making
process exception) are normally
redacted
Clarifications on supporting
After contract signature or cancellation Partially accessible: information
documents or correction of
of the procedure
covered by the commercial interests
clerical errors requested from
and privacy exceptions are
tenderers during evaluation and
normally redacted
their replies
Evaluation report
After contract signature or cancellation Partially accessible: the names of
of the procedure
individuals and the names of the
evaluators (privacy exception or
decision-making process exception)
and passages whose disclosure
would harm tenderers’ commercial
interests including specific prices
(commercial interests exception)
are in principle redacted.
Please note that in the restricted
procedures there are two
evaluation reports relating to two
successive stages of the procedure.
Privileged access rights provided
for in Article 113(3) FR is limited
to tenderers. Therefore, candidates
that are not selected in stage 1 do
not have the privileged access right
to ask for information related to
stage 2.
During the standstill period
(starting by the communication of
the result of the selection to
participants and ending by the
signature of the contract)
candidates often request the
evaluation report and/or the offer of
the winner. Until the contract is
signed, the exception of the
ongoing decision-making process
applies for access-to-documents
requests under Regulation
No 1049/2001.
During the
standstill period, such requests
should be dealt with under 113(3)
of the FR for the interested parties
who have a privileged access.
15
Individual evaluation sheets
Not accessible in principle:
personal notes or evaluation sheets
(scores and comments) drafted or
filled in by individual members of
the evaluation committee (decision
making process exception/ privacy
exception).
Expertise report from external
Partially accessible: the names of
expert to contribute to
individuals and the names of the
evaluation report
evaluators (privacy exception or
decision-making process exception)
and passages whose disclosure
would harm tenderers’ commercial
interests including specific prices
(commercial interests exception)
are normally redacted
Award and signature of contract or cancellation of procedure
Award decision
After adoption of the decision
Accessible
Notification of contract award to After signature of the contract
Partially accessible: the names of
the successful tenderer
individuals and the names of the
evaluators (privacy exception or
decision-making process exception)
and passages whose disclosure
would harm tenderers’ commercial
interests including specific prices
(commercial interests exception)
are normally redacted
Contract and its annexes (tender
The contract is accessible once it
specifications, tender…)
has been signed with the exception
of the tender submitted by the
tenderer which is annexed to the
contract and which is normally
withheld (commercial interests
exception), even after signature of
the contract.
The tender specifications are
normally public. Exceptionally, if
confidential information pertaining
to the authority that issues a call for
tenders is given only to tenderers
that meet certain criteria in RP or
NP, this information is not publicly
disclosed (example: plan of a
Commission building in the context
of a call for tenders for security
services).
Notifications of award decision
After contract signature or cancellation Partially accessible: the names of
to unsuccessful tenderers
of the procedure
individuals (privacy exception) and
passages where disclosure would
harm tenderers’ commercial
interests (commercial interests
exception) are normally redacted
Decision to cancel the
As soon as the decision is taken
Accessible
procedure
16
Notification to tenderers of
As soon as the notification letters are
Partially accessible: the names of
cancellation of procedure
sent out
individuals (privacy exception) and
those parts falling under the
commercial interests and/or
decision-making process exceptions
are normally redacted
Award or cancellation notice
From publication
Accessible (document published)
17
ANNEX 2
ACCESS TO DOCUMENTS (REG. 1049/2001) FOR GRANT AWARD PROCEDURES
The proposed practices listed below can help the services in their analysis. It is imperative to carry out a
concrete assessment of the document(s) on a case-by-case basis by reference to the guidance note.
Reading the
table is not sufficient in order to assess if a document should or should not be disclosed.
NB: under the ‘privacy and integrity’ exception, the applicant for access to documents must justify the necessity of
transfer of personal data in accordance with Regulation No 45/2001.
Document requested
Timing
Usual administrative practices
Publication of call for proposals
Call for proposals
From the moment of publication
Accessible (document published)
Call for proposals file
From the moment of publication or once it
Accessible (document published)
is made available to applicants
Additional information
As soon as the additional information is
Accessible (information
during the procedure
published
published)
Submission of grant applications
Grant applications
Not accessible (commercial
interests and privacy exceptions),
even after finalisation of the grant
award procedure
Evaluation of grant applications
Declarations on the
As soon as they are drawn-up
Partially accessible: names of
absence of conflict of
members of the committee
interest signed by the
(privacy exception) or parts
members of the
falling under the decision-making
evaluation committee
process exception are normally
redacted
Document on evaluation
If published with the call for proposals
Accessible immediately
methodology, where
applicable
After taking the award/rejection decision on Accessible
concerned applications (if not published)
Clarifications requested
After signature of grant agreement or after
Partially accessible: information
from applicants during
cancellation of the procedure
covered by the commercial
evaluation and their
interests and privacy exceptions is
replies
normally redacted
Written record of
After signature of grant agreement of after
Partially accessible: the names of
evaluation of grant
cancellation of the procedure
individuals, the names of external
applications
experts and members of the
evaluation committee (privacy
exception), and passages whose
disclosure would harm grant
applicants’ commercial interests
(commercial interests exception)
18
are normally redacted
Individual evaluation
Not accessible in principle:
sheets
(privacy exception, commercial
interests and/or decision-making
process exceptions)
Individual evaluations which
are stored in an IT Tool, for
example in the Horizon 2020
system, are, in principle, not
accessible (protection of privacy
and integrity of the individual and
of the decision making process)
Award of grants and signature of grant agreements
Award/rejection decisions When the decision is signed
Award and rejection decisions are
partially accessible (protection of
commercial interests, of privacy
and integrity of the individual)
The names of unsuccessful
applicants (or candidates to expert
groups) can under certain
conditions be protected
(commercial interests exception)
Notification of the
As soon as notification letters are sent out
Partially accessible: the names of
award/rejection decision
individuals, the names of external
to the applicants
experts and members of the
evaluation committee (privacy
exception), and passages whose
disclosure would harm grant
applicants’ commercial interests
(commercial interests exception)
are normally redacted
Grant agreement and its When the agreement is signed
Partially accessible: the grant
annexes
application and personal data
(commercial interests exception
and/or privacy exception) are
normally withheld.
19
Document Outline