C(2018) 1909 final
Rue Montoyer 18B
DECISION OF THE SECRETARY-GENERAL ON BEHALF OF THE EUROPEAN COMMISSION
PURSUANT TO ARTICLE 4 OF THE IMPLEMENTING RULES TO REGULATION (EC) N°
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2017/6695
Dear Mr Teffer,
I refer to your email of 8 January 2018, registered on the same date, 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 6 November 2018, addressed to the Directorate-General for
Agriculture and Rural Development, you requested access to [a]ll documents – including
but not limited to e-mails, minutes and 4-column tables – related to the trilogue meetings
between the Parliament and the Council on the organic farming regulation.
The European Commission has identified 88 documents as falling under the scope of
These documents were drafted in the framework of 18 trilogues which took place
between November 2015 and June 2017 following the European Commission Proposal
Official Journal L 345 of 29.12.2001, p. 94.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
on organic production and labelling of organic products (2014/0100 (COD)3 which aims
to revise the existing legislative framework provided by Regulation (EC) No 834/20074.
The above-mentioned 18 trilogues led to a preliminary agreement between the Maltese
Presidency and the European Parliament on the new regulation in the form of a revised
text on 28 June 2018, after three years of negotiation.
In its initial reply of 19 December 2017, the Directorate-General for Agriculture and
Rural Development fully disclosed three out of the 88 identified documents5, and
provided the link to one document which was already public6. It refused, after
consultation of the Parliament and the Council, access to the remaining 84 documents on
the basis of the exception for the protection of the ongoing decision-making process
which is provided under Article 4(3), first subparagraph of Regulation 1049/2001.
More specifically as regards 34 documents consisting of 'four column documents' or their
excepts7, the Directorate-General for Agriculture and Rural Development refused to
provide partial access to them, on the ground that the administrative burden generated by
their redaction would be disproportionate in light of both the lengthy size of the
documents (around 600 pages per trilogue) and the fact that the information proposed for
disclosure was already public.
Through your confirmatory application you request a review of this position. You do not
contest the particularly heavy workload which would be entailed by a partial disclosure
of the above-mentioned 34 documents, you argue that the Directorate-General for
Agriculture and Rural Development's refusal to grant access to the 84 documents poses
considerable problems for European democracy
[as] it would mean that the decision-
making process would only become public after the proposed regulation has already
Consequently the scope of this decision is limited to the 50 fully refused documents
(consisting of agendas and non-papers) and the refused parts of the 34 four column tables
(namely their fourth column) under the exception of Article 4(3), first subparagraph of
2 Official Journal L 145 of 31.5.2001, p. 43.
3 Procedure 2014/0100/COD. COM (2014) 180: Proposal for a regulation of the European Parliament and
of the Council on organic production and labelling of organic products, amending Regulation (EU)
No XXX/XXX of the European Parliament and of the Council [Official controls Regulation] and
repealing Council Regulation (EC) No 834/2007
, available at: http://eur-lex.europa.eu/procedure/EN/2014_100. Hereaft
er the ‘Commission Proposal on organic production and
labelling of organic products’.
4 Council Regulation (EC) No 834/2007
of 28 June 2007 on organic production and labelling of organic
products and repealing Regulation (EEC) No 2092/91
, Official Journal L 189, 20.7.2007, p. 1–23.
5 Namely Documents 1, 2 and 88.
6 Namely Document 85.
7 Namely Documents 5, 7, 8, 10, 11, 12, 13, 15, 16, 17, 19, 20, 23, 24, 25, 28, 29, 30, 35, 36, 41, 42, 43, 44,
47, 48, 49, 58, 71, 72, 76, 77, 80 and 81.
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 concerned at the initial stage.
The documents to which you request access consist of 18 agendas8, 32 informal
documents or ‘non-papers’9 and 34 so-called 'four column documents'10, all of which are
related to recently completed trilogues
regarding the European Commission Proposal on
organic production and labelling of organic products.
Following the review of the assessment of the above-mentioned documents by the
Secretariat-General, I am pleased to grant:
- full access to 9 of the requested agendas, namely Agendas 1 to 7, 9 and 14; and
- partial access to the remaining 9 agendas (amongst which, 8 of the requested
agendas, namely Agendas 8, 10, 11, 12, 13, 15, 16 and 17, are released, subject to
the sole withholding of their attachments).
I regret however to inform you that I have to confirm the initial decision of Directorate-
General for Agriculture and Rural Development to refuse access to the remaining 66
documents (consisting of non-papers and four column documents, including annexes of
Agendas 8, 10, 11, 12, 13, 15, 16, 17 and 18) on the basis of the exception for the
protection of the decision-making process which is provided under Article 4(3), first
subparagraph of Regulation 1049/2001, for the reasons set out below.
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.
In this instance, all above-mentioned 84 documents relate to the 18 trilogues
place between November 2015 and June 2017.
consist of informal meetings between representatives of the three institutions
designed to reach an agreement on proposed legislation. In the framework of trilogues,
representatives of the co-legislators negotiate directly with each other in a spirit of
conciliation of different opinions. Trilogues
can occur at any stage during the legislative
procedure following the submission of the European Commission's proposal.
8 Namely documents 3, 4, 6, 9, 14, 18, 22, 27, 34, 40, 46, 57, 63, 70, 73, 75, 79 and 84. For simplification
purposes, these agendas will be referred to as per the number of the related trilogue: e.g.
Agenda 2, and so forth.
9 Namely documents 21, 26, 31, 32, 33, 37, 38, 39, 45, 50, 51, 52, 53, 54, 55, 56, 59, 60, 61, 62, 64, 65, 66,
67, 68, 69, 74, 78, 82, 83, 86 and 87.
10 Namely Documents 5, 7, 8, 10, 11, 12, 13, 15, 16, 17, 19, 20, 23, 24, 25, 28, 29, 30, 35, 36, 41, 42, 43,
44, 47, 48, 49, 58, 71, 72, 76, 77, 80 and 81.
Notwithstanding the fact that trilogues
are not expressly provided for in the Treaties, they
have proven to be a very effective means of reaching agreements between co-legislators
and, as result, are at the origin of the adoption of most legislation nowadays.
The issue of whether public disclosure of trilogue
-related documents would seriously
undermine the decision-making process within the meaning of Article 4(3), first
subparagraph is at the core of the De Capitani v European Parliament
Pending the decision of the General Court in this case, in which it supports the
Parliament, the European Commission maintains its position, pursuant to which the work
should be surrounded by a minimum level of confidentiality, justifying, as
long as the legislative procedure is ongoing, the temporary non-disclosure of trilogue
In this instance, whereas a preliminary agreement was reached between the Maltese
Presidency and the European Parliament on a new regulation on 28 June 2017, after three
years of negotiation, this revised text still needs to be formally adopted by both
institutions in order to become law.
Both the Court of Justice and the General Court have acknowledged the possibility for
the institution to rely on a general presumption against public disclosure, in order to
refuse access to documents12, including those of a legislative nature13.
As per the logic of the above-mentioned judgments, the European Commission considers
that the fourth column of trilogue
tables is protected by a general presumption against
their public disclosure which is justified by the need to ensure the integrity of the conduct
of the procedure. The latter can be best preserved by limiting unsolicited intervention by
third parties until formal adoption of the legislative text.
Pursuant to the principle of 'nothing is agreed until everything is agreed', which is of
primary importance for the proper functioning of the legislative procedure, disclosure of trilogue
-related documents before the formal adoption of the new legislation may have
irremediable negative consequences on the latter.
This is especially the case since the subject matter at the core of the draft legislation,
namely organic production and labelling of organic products, is very sensitive. The new
to-be-adopted legislation aims indeed at addressing the concern over the risk of the
erosion of consumer confidence due to many exceptions which had the effect of diluting
organic production rules, as well as shortcomings in the control system and import
regime. Extensive discussions took place during the trilogue
negotiations and three years
were necessary to reach a compromise on this sensitive issue which is directly linked to
consumers’ awareness and public health.
11 Case T-540/15.
12 Judgments of the Court of 1 July 2008, Sweden and Turco v Council,
C-39/05 P and C-52/05 P,
and of 17 October 2013, Council v Access Info Europe,
C-280/11 P, paragraph 72;
Judgment of 13 November 2015, ClientEarth v Commission
, T-424/14 and T-425/14, EU:T:2015:848.
13 Judgment of 13 November 2015, ClientEarth v Commission
, T-424/14 and T-425/14, EU:T:2015:848,
In light of the sensitivity of the legislative proposal in question, the numerous political
interests involved, and the efforts of the institutions to reach a satisfactory compromise, it
is of paramount importance to guarantee the conditions required for the final adoption of
the draft regulation and to ensure therefore the temporary non-disclosure of the trilogue
related documents. The latter should indeed remain protected, at least until the end of the
legislative procedure, which will only be completed upon the formal adoption of the draft
revised regulation by the co-legislators.
-related documents, and in particular the so-called 'four-column documents' are
working tools used during the trilogues
and cannot therefore be considered to be part of
the ‘formal legislative process’ within the meaning of the Access Info Europe v Council
judgment, which allows to draw a distinction between those informal documents and the
documents which chart the formal decision-making process of the co-legislators, makes
them subject to a different standard of transparency14.
The European Commission considers that ‘four-column’ tables and the non-papers at
issue are documents of the same nature which fall within the same category within the
meaning of the case law, as explained below.
The 34 so-called 'four-column documents' track the progress of the trilogues
They combine the initial positions of the three institutions (set out in the first three
columns) with a fourth column which reflects the compromise text as it evolved during
the discussions. The completed and agreed upon fourth column constitutes the final
compromise text which must still be adopted under the formal procedure by each co-
legislator in order to become enacted in law.
The 32 informal documents or ‘non-papers’ (including the annexes to Agendas 8, 10, 11,
12, 13, 15, 16, 17 and 18) were drafted by the European Commission, the Council or the
European Parliament in the framework of preliminary discussions and were intended as
preparatory documents aimed at clarifying discussion points so as to facilitate reaching a
compromise. These documents therefore reflect preliminary views on specific aspects of
the above-mentioned Commission proposal.
Consequently, the above-mentioned 34 ‘four column documents’ and 32 ‘non-papers
papers’ (including the annexes to Agendas 8, 10, 11, 12, 13, 15, 16, 17 and 18) cannot be
released as they are protected under a general presumption pursuant to which their public
disclosure, at this stage of the legislative procedure, would seriously undermine the
decision-making process within the meaning of Article 4(3), first subparagraph of
As far as Agenda 18 is concerned, as stated in the Directorate-General for Agriculture
and Rural Development’s initial reply, it contains explicit references to the negotiation
procedure which has yet to be completed.
14 Judgment of 22 March 2011, T-233/09, EU:T:2011:105, paragraph 77.
Against this background, I conclude that the premature disclosure of the requested
Agenda 18, 32 ‘non-papers’ and the 34 so-called 'four-column documents', before the
formal adoption of the Regulation on organic production and labelling of organic
products, would seriously undermine the decision-making process of the institution
within the meaning of Article 4(3), first subparagraph of Regulation 1049/2001, as well
as the inter-institutional decision-making process.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(3), first subparagraph 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 [i]f citizens, potentially via media, are
not able to know the steps leading up to the final compromise text, they are not well-
informed enough to tell their MEPs or national governments representing them in the
Council whether they would like the legislative proposal to be supported.
you, [t]his could seriously undermine their potential to influence policy-making.
The European Commission acknowledges that citizens’ effective participation into the
EU legislative decision-making process of the institutions is an essential element of EU
law-making legitimacy. As the Court of Justice has held, [o]penness in
process] contributes to strengthening democracy by allowing citizens to scrutinize all the
information which has formed the basis of a legislative act. The possibility for citizens to
find out the considerations underpinning legislative action is a precondition for the
effective exercise of their democratic rights
In this instance, the European Commission considers nevertheless that citizens’
participation into the legislative process was duly ensured, as evidenced below.
Since the very beginning of the legislative review process, citizens’ involvement has
been welcome and solicited. As early as in 2013, the European Commission launched a
public consultation on the organic sector which resulted in more than 45,000 answers
from citizens. Subsequently, organic stakeholders from all sectors, including producers,
the industry and consumers were all invited in the framework of the impact assessment
exercise to share their views on the future of organics. This is on the basis of their
respective contributions that the Commission drafted its proposal for a revised
legislation. This proposal was made public in March 2014.
The general approach and the European Parliament’s amendments were published in
2015. When the trilogues
started in November 2015, the European Parliament was
involved not only at Rapporteur’s but also at Shadow Rapporteurs’ level, thus covering
the whole political spectrum. Moreover, the Rapporteur informed regularly other MEPs
at the Committee of Agriculture (COMAGRI) which is in principle broadcasted in
15 Judgment of 1 July 2008, C-39/05 P and C-52/05 P, EU:C:2008:374, paragraph 46.
streaming on the European Parliament’s website so as to keep citizens duly informed.
Furthermore, the Commission received frequent contributions and position papers from
the MEPs evidencing regular information and input from the various stakeholders.
The successive Presidencies also represented the 28 Member States and their citizens,
including producers, processors and consumers. They kept Member States informed at
every Special Committee of Agriculture and requested renewed negotiating mandates
whenever necessary to ensure maximal consistency with national positions. Discussion
tables were held at Member States’ level with the various stakeholders interested in the
reform, so as to inform the latter on the outcome of the different steps and progress of the
Against this background of (i) the publication of the European Commission’s Proposal
following a wide public consultation, (ii) regular participation of elected MEPs and (iii)
constant reporting of the Presidency of the European Council to the Member States, it
must be concluded that the required transparency and regular information of the citizens
was sufficiently safeguarded for the latter to meaningfully participate and influence the
main steps of the legislative decision-making process.
The three Institutions share a commitment to enhancing the transparency of the
legislative process and for this reason are currently developing detailed technical
specifications for the concept of a future Joint Legislative Portal. The latter is intended to
be a way for a non-specialist audience to find information and documents relating to
legislative files, linking up the different sources of information from the Institutions.
Whereas it will continue its engagement with the co-legislators to fulfil the commitments
to enhance transparency of the legislative process as set out in the Interinstitutional
Agreement on Better Law-making, the European Commission considers that the general
principle of the existence of an overriding public interest in the field of the legislative
activities of the institutions, based on the transparency requirements stemming from
Article 15 TFEU and Regulation 1049/2001, finds its limits in the interest of ensuring the
proper functioning of the legislative procedure guaranteed by Article 294 TFEU.
Consequently, the European Commission considers in this instance that documents
underlying the trilogues
should not be prematurely disclosed prior to the formal adoption
of the organics review compromise text which, in light of the efforts deployed to ensure
citizens’ continuous information and effective participation.
Furthermore, it should be stressed that the European Commission does intend to ensure
the confidentiality of the requested documents, especially of the ‘four column
documents’, mainly until the adoption of the legislation. Such confidentiality does not
mean that the public will never have the opportunity to be informed of and understand
the evolution of the respective positions of the institutions during the negotiating process
in question. Such access will be duly considered, following future requests thereto under
Regulation 1049/2001, once the disclosure of the information concerned will no longer
jeopardise the proper functioning of the legislative procedure.
In light of the above, I must conclude that, in this instance, I have not been able to
identify any public interest capable of overriding the above-mentioned interest protected
by Article 4(3), first subparagraph of Regulation 1049/2001.
In accordance with Article 4(6) of Regulation 1049/2001, I have considered the
possibility of granting partial access to the documents requested.
Consequently, partial access is provided to Agendas 8, 10, 11, 12, 13, 15, 16 and 17,
subject to the sole redaction of their respective annexes (which are covered by a general
presumption against public disclosure, as explained above.)
As far as Agenda 18 is concerned, partial access is provided, subject to the redaction of:
- its parts containing explicit references to substantive contents of the negotiation
procedure which has yet to be completed; and
- its three annexes which are covered by a general presumption against public
disclosure, as explained above.
According to settled case-law, the documents covered by a general presumption, such as
the one referred to in section 2 of this decision, do not fall within an obligation of
disclosure, in full, or in part16.
The above-mentioned case law does not, however, exclude the right of applicants to
demonstrate that a given document, disclosure of which has been requested, is not
covered by that presumption17.
In this instance, I note that, in the framework of your confirmatory application, you do
not contest the particularly heavy workload which would be engendered by partial
disclosure of the 34 ‘four column documents’, nor the fact that the information contained
in their three columns would not be of any substantial value as it is already publicly
Moreover, for the reasons explained above, no meaningful partial access is possible
without undermining the interest described above or creating a disproportionate
administrative burden in light of the fact that the documents to be redacted are very
voluminous and the to-be released information contained therein would be of no
substantial value as it is already of public knowledge.
16 Judgment of 28 June 2012, Editions Odile Jacob
, C-404/10 P, EU:C:2012:393, paragraph 133.
17 Judgment of 29 June 2010, Technische Glaswerke Ilmenau
, C-139/07 P, EU:C:2010:376, paragraph 103.
The fact that a document contains information which is already of public domain, far
from being capable of justifying a refusal of partial access, requires in principle its partial
disclosure18. However, pursuant to settled case-law, in exceptional circumstances:
[A] derogation from the obligation to grant partial access might be permissible where
the administrative burden of blanking out the parts that may not be disclosed proves to
be particularly heavy, thereby exceeding the limits of what may reasonably be required
The General Court has further held that:
[…] The principle of sound administration requires that the duty to grant partial access
should not result in an administrative burden which is disproportionate to the applicant's
interest in obtaining that information
Furthermore, detailed information pertaining to the legislative procedure in question,
including concerning the respective positions of the institutions is available, inter alia
the following link:
Consequently, I have come to the conclusion that the 32 ‘non-papers’ above-mentioned
and the 34 ‘four column documents’ cannot be publicly disclosed under Regulation
1049/2001. As far as the latter documents are concerned, the administrative burden
engendered by implementing such partial access would indeed not weigh up against your
possible interest in obtaining the (already public) information contained in the parts that
would remain unredacted.
MEANS OF REDRESS
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
18 Judgment of 30 January 2008, Terezakis v Commission
, T-380/04, EU:T:2008:19, paragraph 101.
19 Judgment of 7 February 2002, Kuijer v Council
, T-211/00, EU:T:2002:30, paragraph 57.
20 Judgement of 12 July 2001, Mattila v Council and Commission,
T-204/99, EU:T:2001:190, paragraph
European Ombudsman under the conditions specified respectively in 263 and 228 of the
Treaty on the Functioning of the European Union.
For the Commission
18 (including 9 partially and 9 fully disclosed agendas)