Ref. Ares(2017)2887043 - 09/06/2017
EUROPEAN COMMISSION
Directorate-General for Trade
The Director General
Brussels,
trade.dga2.f.1(2017)2685725
By registered letter with acknowledgment of
receipt
Mr Akos Eger
1091 Budapest
Üllői út 91/b
Budapest
Hungary
Advance copy by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents - Ref Gest Dem No 2017/2326
Dear Mr Eger,
I refer to your e-mail dated 18 April 2017 in which you make a request for access to
documents under Regulation (EC) No 1049/20011 ("Regulation 1049/2001"), registered
under the above mentioned reference number.
1.
SCOPE OF YOUR REQUEST
You request access to "
the CHECKLIST for reporting according to Regulation (EU)
1233/2011 of EximBank the Hungarian export-credit agency for last three years".
We have identified the following documents that fall under the scope of your request:
• The Annual Activity Report 2014 according to Regulation 1233/2011 for
Hungary (Ares(2017)850494) ("
document 1");
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
• The Annual Activity Report 2015 according to Regulation 1233/2011 for
Hungary ("
document 2");
Please note that an Annual Activity Report for 2016 according to Regulation 1233/2011
for Hungary has not yet been received by the European Commission.
2.
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 disclosure
"3. 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 applied strictly"5.
Having examined the document in light of the applicable legal framework, I am pleased
to release
document 1, which concerns the Annual Activity Report for 2014 submitted
by Hungary. A copy of the document is enclosed.
I regret to inform you that unfortunately access cannot be granted to
document 2, as it
falls entirely under the exception set out in article 4(3) first subparagraph of Regulation
1049/2001.
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”.
Annex I of Regulation (EU) No 1233/20116 stipulates that
“[...] each Member State shall
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.
3
Id., paragraphs 37-43. See also judgment in
Council v Sophie in Ί Veld, C-350/12 P, EU:C:2014:2039.
paragraphs 52 and 64.
4
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 (EU) No 1233/2011 of the European Parliament and of the Council of 16 November 2011
on the application of certain guidelines in the field of officially supported export credits and repealing
Council Decisions 2001/76/EC and 2001/77/EC, OJ 2011, L326, p. 45.
2
make available to the Commission an Annual Activity Report in order to step up
transparency at Union level” and that
“[t]he Commission shall produce an annual
review for the European Parliament based on this information, including an evaluation
regarding the compliance of ECAs with Union objectives and obligations”.
Neither Regulation 1049/2001 nor Regulation 1233/2011 contains any provision
expressly giving one regulation primacy over the other. Therefore, it is appropriate in
these circumstances to ensure that each of those regulations is applied in a manner which
is compatible with the other, and which enables a coherent application of them7.
The Annual Activity Reports for 2015 have been submitted by the Member States
concerned to the Commission in the course of 2016. They have not yet been shared,
however, by the Commission with the European Parliament. The Commission is
currently in the process of preparing the annual review of these reports to the European
Parliament, which, in accordance with Annex I of Regulation 1233/2011, will contain the
Commission’s evaluation regarding the compliance of the export credit agencies with the
Union objectives and obligations. Therefore, the reports are currently the subject of an
ongoing analysis by the Commission.
It would be inconsistent with the purpose of Regulation 1233/2011 if reports that have
not yet been transmitted to the European Parliament would at this stage be disclosed to
the public. Such disclosure would seriously undermine the inter-institutional decision-
making process established in Regulation 1233/2011 by straining the relationship with
the European Parliament at this early stage where the Commission review has not yet
been finalized, nor presented to and discussed with its institutional partner. With
reference to Article 4(3) first subparagraph of Regulation 1049/2001 it would also
undermine the ongoing decision-making process for the adoption of the Commission’s
annual review by disclosing the input which forms the basis of the Commission’s review
and exposing the Commission to the risk of external pressure to adopt one conclusion or
the other in its evaluation, while the Commission must be placed in a position to explore
different options and act in a fully independent manner and in the service of the general
interest8.
In conclusion, this means that document 2 cannot at this stage be shared. It is only after
the Commission has concluded the review of the reports and transmitted its evaluation
report to the European Parliament that access to the requested 2015 report might be
considered. For this purpose, I invite you to renew your request for this report at the
beginning of 2018.
7
See by analogy, judgment of the Court of Justice of 28 June 2012 in case C-404/10 P
Commission v.
Éditions Odile Jacob SAS, EU:C:2012:393, paragraph 110.
8 Judgment of the General Court of 13 November 2015 in joined cases T-424/14 and T-425/14,
ClientEarth v Commission, EU:T:2015:848, paragraph 84.
3
3.
OVERRIDING PUBLIC INTEREST
The exception laid down in Article 4(3) 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. The Court of Justice
has acknowledged that it is for institution concerned by the request for access to balance
the particular interest to be protected by non-disclosure of the document against the
public interest. In this respect, the public interest is of particular relevance where the
institution
"is acting in its legislative capacity"9 as transparency and openness of the
legislative process strengthen the democratic right of European citizens to scrutinize the
information which has formed the basis of a legislative act10.
Document 2 pertains to the domain of the executive functions of the EU as it concerns
reporting and evaluation activities of national export credit agencies.
After careful assessment, we have concluded that on balance, preserving the
Commission's decision-making prevails over transparency in this specific case. In
particular, disclosure at this stage of document 2 would undermine the relationship of the
Commission with the European Parliament and its ongoing analysis and evaluation
activities. Therefore, on the basis of the considerations made above, we have not been
able to identify a public interest capable of overriding the Commission's decision making
process.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of the Regulation, we have also examined the possibility
of granting partial access to document 2. However, it follows from the assessment made
above that this document is manifestly and entirely covered by the exception set out in
Article 4(3) first subparagraph of Regulation 1049/2001. As a consequence, no such
access can be granted.
***
Please note that document 1 was received by the Commission from the Hungarian
competent authority. It is disclosed for information only. It does not reflect the position of
the Commission and cannot be quoted as such.
***
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.
9
Judgment in
Sweden and Maurizio Turco v Council, Joined cases C-39/05 P and C-52/05 P,
EU:C:2008:374, paragraph 46.
10
Id, paragraph 67.
4
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:
European Commission
Secretary-General
Transparency unit SG-B-4
BERL 5/282
1049 Bruxelles
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
Jean-Luc DEMARTY
Encl.: document 1 as released
5
Electronically signed on 08/06/2017 18:24 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563
Document Outline