Ref. Ares(2018)93845 - 08/01/2018
EUROPEAN COMMISSION
Directorate-General for Trade
The Director General
Brussels,
trade(2017)6946262
By registered letter with
acknowledgment of receipt
Ms Lora Verheecke
Corporate Europe Observatory (CEO)
Rue d'Edimbourg 26
1050 Brussels
Advance copy by email:
ask+request-4735-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – Ref GestDem No 2017/6171
Dear Ms Verheecke,
I refer to your request of 26 October 2017 for access to documents under Regulation (EC)
No 1049/20011 ("Regulation 1049/2001"), registered with reference number GestDem
2017/6171 on the same date.
1.
SCOPE OF YOUR REQUEST
You requested access to "
all communication, including emails, and documents (agenda,
minutes, list of participants, etc.) related to the meeting between Miguel Ceballos Baron and
the European Council on Foreign Relations (ECFR) on 19th July 2017".
We have identified the following documents that fall within the scope of the request:
An email from the ECFR to the Deputy Head of Cabinet of Commissioner
Malmström requesting a meeting ("
document 1") and an attachment containing a
note prepared by the ECFR ("
annex to document 1") (both registered under the
reference number Ares(2017)3384259);
a chain of emails containing the reply by the Cabinet confirming the meeting to take
place on 19 July 2017 (Ares(2017)3384699) ("
document 2"); and
the report of the meeting on 19 July 2017 ("
document 3")(Ares(2017)5867375).
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. +32 229 91111
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 requested documents under the applicable legal framework, I am
pleased to grant access to the content of
documents 1, 2 and 3. In documents 1 and 2 some
personal data 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.
I regret to inform you that access cannot be granted, however, to the
annex to document 1, as
this document is protected by the exceptions set out in Article 4(1)(a) third indent (protection
of the public interest as regards international relations) and Article 4(2) first indent
(protection of commercial interests) of Regulation 1049/2001.
The reasons justifying the application of the exceptions are set out below in Sections 2.1, 2.2
and 2.3. Section 3 contains an assessment of whether there exists an overriding public interest
in the disclosure.
2.1
Protection of international relations
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”.
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’t 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 (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.
2
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"8.
The annex to document 1 is a note prepared by ECFR containing policy options,
recommendations, and interim conclusions on the topic of foreign investment screening,
with a focus on specific actors and initiatives. As such, this note was meant for internal use as
a basis to inform the internal reflections in relation to EU positions, strategies and objectives
on various aspects of the initiative on screening of foreign direct investment. It also includes
specific considerations with regard to the impact of this initiative on the relations of the EU
with third countries. Disclosing the content of this document may provide the partners of the
EU with information on specific strategic concerns, options and objectives which could be
used to the detriment of the EU and its Member States, including in the context of ongoing
or future trade negotiations. This would ultimately undermine in a reasonably foreseeable
manner the public interest as regards the international relations of the EU.
2.2
Protection of privacy and 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: […] privacy and the
integrity of the individual, in particular in accordance with Community legislation
regarding the protection of personal data".
Documents 1 and 2 contain personal information, such as names, telephone numbers or e-
mail addresses.
The applicable legislation in this field is Regulation (EC) No 45/2001. Article 2(a) of
Regulation 45/2001 provides that
"'personal data' shall mean any information relating to an
identified or identifiable natural person […]". In this respect, the jurisprudence of the EU
Courts has clarified that activities of a professional nature may fall within the notion of
'private
life'9 and that
"surnames and forenames may be regarded as personal data"10
, including names
of the staff of the institutions11.
7
Judgment in
Sison v
Council, C-266/05 P, EU:C:2007:75, paragraph 36.
8
Judgment in
Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039, paragraph 63.
9
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.
10
Judgment in
Commission v Bavarian Lager, C-28/08 P, EU:C:2010:378, paragraph 68.
11
Judgment in
Guido Strack v Commission, C-127/13 P,
EU:C:2014:2250, paragraph 111.
3
In accordance with Article 8(b) of Regulation 45/2001 personal data may 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"12. I consider on the basis of your application, that these conditions have not been
met. Therefore, in order to ensure the protection of the privacy and integrity of the
individuals concerned, the personal data in question cannot be transferred.
However, in line with the Commission's commitment to ensure transparency and
accountability13, the names of the Members of Cabinet are disclosed. For the ECFR, the
name of the Director for the Asia Program is also disclosed.
2.3
Protection of commercial interest
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, including intellectual property […] unless there is an
overriding public interest in disclosure".
The annex to document 1 is a note marked "private and confidential" prepared by ECFR and
shared with the Commission as an input for reflections and discussions in relation to the
initiative on the screening of foreign direct investment. Public disclosure of this document
would harm in a reasonably foreseeable manner the commercial interests of the authors of
the document and of ECFR, including breaching their intellectual property rights.
The commercial interests of ECFR and its experts consist in conducting researches and
producing policy papers that are paid for. The result of their work is protected by intellectual
property rights. Disclosing the annex to document 1 would mean, in practice, putting it in
the public domain for free and against the intellectual property rights of both the authors of
the document and the organisation for which they work. This assessment is confirmed by
ECFR and its authors, who upon consultation by DG TRADE, opposed the release of the
document on the ground that this would undermine their commercial interests.
3.
OVERRIDING PUBLIC INTEREST
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 annex to
document 1 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 ECFR and the authors of the document. The public interest in this specific case
rather lies in the protection of the legitimate confidentiality interests of the entity and
12
The Court of Justice has clarified that
"it is for the person applying for access to establish the necessity of
transferring that data" (C-127/13 P, paragraph 107; see also judgment in C-28/08 P
Commission v Bavarian Lager, EU:C:2010:378, paragraph 77).
13
See Commission decisions C(2014) 9051 and C(2014) 9048 of 25 November 2014.
4
individuals concerned to ensure that the Commission continues to receive useful
contributions without undermining the commercial position of the actors involved.
4.
PARTIAL ACCESS
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 annex to document 1. However, this document is entirely covered by the exceptions set
out in Article 4(1)(a) third indent and in Article 4(2) first indent of Regulation 1049/2001 as
it is impossible to disclose any parts without undermining the protection of the international
relations of the EU and of the commercial interests of ECFR.
***
In case you would disagree with the assessment contained in this reply, you are entitled, in
accordance with Article 7(2) of Regulation 1049/2001, to make a confirmatory application
requesting the Commission to review this position.
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
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
Jean-Luc DEMARTY
Encl.:
(Partially) released documents
5
Electronically signed on 22/12/2017 14:54 (UTC+01) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563