Ref. Ares(2018)2723149 - 25/05/2018
Directorate-General for Trade
The Director General
By registered letter with acknowledgment of
Ms Nina Renshaw
European Public Health Alliance (EPHA)
Rue de Treves 29-51
Advance copy by email: [FOI #5283 email]
Your application for access to documents – Ref GestDem No 2018/1754
Dear Ms Renshaw,
I refer to your application dated 22 March 2018 in which you make a request for access
to documents under Regulation (EC) No 1049/20011 ("Regulation 1049/2001"),
registered on the same date under the above mentioned reference number.
Please accept our apologies for the delay in answering to your request, which is mainly
due to a high number of requests for access to documents being processed at the same
time by DG TRADE.
SCOPE OF YOUR REQUEST
In your application, you request access to
all reports (and other notes) from meetings between Directorate General Trade
and representatives of the tobacco industry (producers, distributors, importers etc, as
well as trade associations and chambers of commerce, or other organisations and
individuals that work to further the interests of the tobacco industry) related to the EU-
Mercosur negotiations, since January 1st 2017.
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 11111
all correspondence (including emails) between the European Commission and
representatives of the tobacco industry (producers, distributors, importers etc, as well as
trade associations and chambers of commerce, or other organisations and individuals
that work to further the interests of the tobacco industry) since January 1st 2017.
a list of all the above-mentioned documents (including dates, names of
participants/senders/recipients and their affiliation, subject of meeting/correspondence)
We have identified five documents falling under the scope of your request. We enclose
for ease of reference a list of these documents in Annex I. For each of them, the list
provides a description and indicates whether parts are withheld and if so, under which
ground pursuant to Regulation 1049/2001. Copies of the accessible documents are
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 poses 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"
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"
Having examined the documents in light of the applicable legal framework, partial access is
granted to the documents.
In particular, in documents 1, 3 and 4, only 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.
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.
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.
Regulation (EC) No 1049/2001, recital (4).
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.
In documents 2 and 5, in addition to personal data protected under article 4(1)(b) of
Regulation 1049/2001, additional information was redacted in accordance with article
4(1)(a) third indent (protection of the public interest as regards international relations) and
article 4(2) first indent (protection of the commercial interests of a natural or legal person).
Please note that those parts not falling within the scope of your request have been clearly
marked as out of the scope.
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.
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.”
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
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"
Certain passages in document 2 and in document 5 have been redacted as they reveal the
external stakeholders’ main business concerns, strategic interests, priorities and their
internal assessment and input for the negotiations with Mercosur. As such, this information
indirectly reveals negotiating priorities, strategic objectives and tactics which the EU could
consider pursuing in its trade negotiations.
The above-mentioned information was in general meant for internal use as a basis to
establish EU positions, strategies, objectives and way forward on specific aspects of the
negotiations with Mercosur.
Indeed, the success of trade negotiations depends to a large extent on the protection of
objectives, tactics and fall-back positions of the parties involved. In order to ensure the
best possible outcome in the public interest, the EU needs to retain a certain margin of
manoeuvre to shape and adjust its tactics, options and positions in function of how the
discussions evolve in its trade negotiations. Exposing internal views and considerations
would weaken the negotiating capacity of the EU, reduce its margin of manoeuvre and be
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.
exploited by our trading partner to obtain specific results, thereby undermining the
strategic interests of the EU and consequently, the protection of the public interest as
regards international relations.
Against this background, if information submitted by these external stakeholders to the
European Commission would be released, there would be a clear and non-hypothetical
risk that external stakeholders would not provide similar information to the European
Commission in the future. This means that the European Commission would be deprived
of the possibility to obtain precise and relevant information allowing it to objectively
assess its negotiating options. The negotiation power of the European Commission would
consequently be affected and its position in the negotiations weakened, which in turn
would damage the protection of the public interest as regards international relations.
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."
The Court of Justice has ruled that "where an application based on Regulation 1049/2001
seeks to obtain access to documents containing personal data" "the provisions of
Regulation 45/2001, of which Articles 8(b) and 18 constitute essential provisions, become
applicable in their entirety".
Article 2(a) of Regulation 45/2001 provides that "'personal data' shall mean any
information relating to an identified or identifiable natural person […]"
. The Court of
Justice has confirmed that "there is no reason of principle to justify excluding activities of a
professional […] nature from the notion of 'private life'"
10 and that "surnames and
forenames may be regarded as personal data"
,11 including names of the staff of the
According to Article 8(b) of this Regulation, personal data shall only 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
. The Court of Justice has clarified that "it is for the person applying for access
to establish the necessity of transferring that data".
All the documents contain names and other personal information that allows the
identification of natural persons.
9 Judgment in Guido Strack v Commission,
EU:C:2014:2250, paragraph 101; see also
judgment in Commission v Bavarian Lager,
C-28/08 P, EU:C:2010:378, paragraphs 63 and 64.
10 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.
11 Judgment in Commission v Bavarian Lager,
C-28/08 P, EU:C:2010:378, paragraph 68.
12 Judgment in Guido Strack v Commission,
EU:C:2014:2250, paragraph 111.
13 Judgment in C-127/13 P Guido Strack v Commission,
EU:C:2014:2250, paragraph 107 and judgment
in C-28/08 P Commission v Bavarian Lager,
EU:C:2010:378, paragraph 77.
I note that you have not established the necessity of having these personal data
transferred to you. Moreover, it cannot be assumed, on the basis of the information
available, that disclosure of such personal data would not prejudice the legitimate
interests of the persons concerned. Therefore, these personal data shall remain
undisclosed in order to ensure the protection of the privacy and integrity of the
However, please note that the names of representatives of the companies occupying
senior management positions are disclosed.
Protection of commercial interests
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"
Certain passages in documents 2 and 5 have been withheld because they reveal specific
views, concerns and interests of different stakeholders regarding negotiations with
Mercosur. They contain commercial priorities, strategies and concerns these stakeholder
have. There is a reasonably foreseeable risk that the public disclosure of this information
would harm the commercial interests of the entities and companies concerned, as it could
be exploited by competitors to undermine their competitive positions in third countries and
their relationship with the other economic operators in such markets.
All this information was shared with the Commission in order to provide useful input and
support for the EU’s objectives in its trade negotiations with Mercosur. Economic
operators typically share information with the Commission so that the latter can
determine how to best position itself in the negotiations in order to protect its strategic
interests and those of its industry, workers and citizens. Ensuring that the Commission
continues to receive access to this information and that the industry engages in open and
frank discussions with the Commission, are key elements for the success of the internal
and external policies of the EU and its international negotiations. Bringing in the public
domain specific business related information that companies share with the Commission
may prevent the Commission from receiving access to such information in the future.
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
withheld passages in documents 2 and 5 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 the companies concerned. The public interest in
this specific case rather lies on the protection of the legitimate confidentiality interests of
the stakeholders concerned to ensure that the Commission continues to receive useful
contributions for its negotiations with its trading partners.
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.
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:
Transparency unit SG-B-4
or by email to: [email address]
Electronically signed on 25/05/2018 15:13 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563