Ref. Ares(2019)2108831 - 26/03/2019
Directorate-General for Trade
DG/JLD/TIS/alf (2019) 1627343
By registered letter with
acknowledgment of receipt:
Ms Josefina Martí
Calle de Juan Bravo 62
España Advance copy by email:
Your application for access to documents – Ref GestDem No
Dear Ms Martí,
I refer to your email of 6 December 2018 in which you make a request for access to
documents under Regulation (EC) No 1049/20011 ("Regulation 1049/2001"), registered
on the 7 December 2018 under the reference number GestDem No 2018/6527.
1. SCOPE OF YOUR REQUEST
In your application, you requested access to: 1) all the trade agreement drafts (and/ or proposals) submitted by both parties (EU-
Mercosur) since October 2016.
2) all the agendas/ minutes/ notes produced in the negotiation rounds since October
3) a list of Commission services and officials as well as Mercosur regulatory agencies
and officials who have been involved in EU-Mercosur discussions on regulatory issues in
the context of the trade agreement, which started in October 2016.
4) a list of meetings of DG Trade officials and/or representatives (including the
Commissioner and her Cabinet) and representatives of individual companies and/or
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
industry federations, in which EU-Mercosur trade relations and possible new
negotiations have been discussed (since October 2016). The list should include the
names of the individuals and organisations attending; the date; the place; and any
agendas / minutes / notes produced.
5) all correspondence (including emails) between DG Trade officials and/or
representatives (including the Commissioner and her Cabinet) and representatives of
companies and/ or industry federations, relating to EU-Mercosur trade relations and
possible new negotiations (since October 2016).
On 9 January 2019, you provided an additional clarification, which helped us to reduce
the scope of your original request to a more targeted number of documents. The
modifications concern point 4 and 5 of your request where you agreed to receive a list of
meetings specified under point 4 but without any additional document related to these
meetings. As regards point 5, you confirmed that the new period from which the
correspondence will be considered would be from October to December 2018.
I regret the time it has taken to provide a reply, but given the broad nature of your request
you will understand that it has been necessary to make an extensive search.
2. ASSESSMENT CONCLUSIONS UNDER REGULATION 1049/2001
In reply to the points 1 and 2
please note that the European Commission is publishing
all its original textual proposals of the different trade agreement chapters as well as the
reports from the negotiating rounds as from October 2016 until the last 37th round that
took place in December 2018. All these documents can be found under the following
With regard to the point 3
, please note that the negotiations for a free trade agreement
between the EU and Mercosur have been conducted at political and technical level as
1) for the EU side by the EU Trade Commissioner - Ms Cecilia Malmström and the
EU Chief Negotiator Ms Sandra Gallina, Deputy Director General of DG TRADE
2) for MERCOSUR: by the Ministers of Foreign Affairs of Argentina, Brazil,
Uruguay and Paraguay and by the respective Chief Negotiators for each country.
The names are listed per country as follows:
Argentina: Mr. Jorge Marcelo Faurie, Minister of Foreign Affairs (as of June
2017), Ms. Susana Malcorra, Minister of Foreign Affairs (from 2015 until 2017),
and Chief Negotiators: Mr. Horacio Reyser, Secretary for Regional Economic
Integration and MERCOSUR, MFA ; Mr. Vittorio Carpintieri,
Secretary for Regional Economic Integration and MERCOSUR, MFA.
Brazil: Mr. Aloysio Nunes Ferreira Filho, Minister of Foreign Affairs (as of
2017), Mr. Mauro Vieira, Minister of Foreign Affairs (from 2015 to 2017); and
Chief Negotiators: Mr. Ronaldo Costa Filho, Ambassador, Director of the
Department of Extra-regional Trade Negotiations, MFA, and Mr. André
Odenbreit Carvaçho, Director of the Department of Extra-regional Trade
Uruguay: Mr Rodolfo Nin Novoa, Minister of Foreign Affairs and Ms. Valeria
- Minister Counsellor, MFA, Chief Negotiator.
Paraguay: Mr. Luis Castiglioni, Minister of Foreign Affairs (as of 15 August
2018), Mr. Eladio Loizaga Caballero, Minister of Foreign Affairs (until August
2018), and Mr. Juan Ángel Delgadillo, Minister, Chief Negotiator of Paraguay.
In reply to the point 4
of your request, Article 2(3) of Regulation 1049/2001 specifies
the right of access as defined in that regulation applies only to existing documents in the
possession of the institution. Unfortunately, we do not have such a list as a self-standing
In order to assist you however, we have compiled the information you have requested in
line with the Code of Good Administrative Behavior. You will find the corresponding list
in the document attached to this reply (Annex1). As for the point 5
, we have identified 11 documents, that fall within the scope of your
request (see the attached list of documents).
In accordance with settled case law, 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 1049/20012.
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 would undermine the protection of the interest covered by the
exception. Third, the risk of that interest being undermined must be "reasonably
foreseeable and not purely hypothetical"3.
If the institution 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
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.
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.
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.
In view of the objectives pursued by Regulation 1049/2001, notably to give the public
the widest possible right of access to documents5, "the exceptions to that right […] must
be interpreted and applied strictly
Having carefully examined your request in light of the applicable framework, I am
pleased to inform you that access can be granted to the content of documents 1, 3, 4, 6, 7
some personal data has been withheld in accordance with Article 4(1)
(b) of Regulation 1049/2001. Please note that information not related to the scope of your
request has been marked as falling outside the scope. Copies of the accessible documents
are enclosed. The names of officials at Director level or above are released. In documents 2 and 5
in addition to personal data, some parts have been redacted
pursuant to Article 4(1)(a) third indent of Regulation 1049/2001 concerning the
protection of the public interest as regards international relations and Article 4(3) of the
same regulation concerning the protection of ongoing decision making process.
I regret to inform you that access is not granted to documents 9, 10 and 11
Article 4 (1) (a) third indent of the Regulation 1049/2001 concerning the protection of
the public interest as regards international relations and Article 4(3) of the same
regulation concerning the protection of ongoing decision making process. The annex of
document 11 is withheld in accordance with Article 4 (2) first intend related to the
protection of the public interest as regards commercial interests.
The reasons justifying the application of the previously mentioned exceptions are set out
below in sections 2.1, 2.2, 2.3, and 2.4. Section 3 contains an assessment of whether
there exists an overriding public interest in the disclosure.
2.1 Protection of the privacy and the integrity of the individual
Pursuant to Article 4(1) (b) of Regulation (EC) No 1049/2001, access to a document has to
be refused if its disclosure would undermine the protection of privacy and the integrity of
the individual, in particular in accordance with European Union legislation regarding the
protection of personal data.
Regulation (EC) No 2018/17257 of 23 October 2018 on the protection of natural persons
with regard to the processing of personal data by the Union institutions, bodies, offices and
agencies repealed Regulation (EC) No 45/2001 and Decision No 1247/2002/EC
(‘Regulation 2018/1725’) in the field of data protection.
Article 3(1) of Regulation 2018/1725 provides that personal data "means any information
relating to an identified or identifiable natural person […]
". The Court of Justice has
any information, which due to its content, purpose or effect, is linked to a
Regulation (EC) No 1049/2001, recital (4).
Judgment in Sweden v Commission
, C-64/05 P, EU:C:2007:802, paragraph 66.
7 Official Journal L 205 of 21.11.2018, p. 39.
particular person is to be considered as personal data.8 Please note in this respect that the
names, signatures, functions, telephone numbers and/or initials pertaining to staff members
of an institution are to be considered personal data.9
In its judgment in Case C-28/08 P (Bavarian Lager
)10, the Court of Justice ruled that when a
request is made for access to documents containing personal data, the Data Protection
Regulation becomes fully applicable11.
Pursuant to Article 9(1) (b) of Regulation 2018/1725, personal data shall only be transmitted
to recipients established in the Union other than Union institutions and bodies if "the
recipient establishes that it is necessary to have the data transmitted for a specific purpose
in the public interest and the controller, where there is any reason to assume that the data
subject’s to legitimate interests might be prejudiced, establishes that it is proportionate to
transmit the personal data for that specific purpose after having demonstrably weighed the
various competing interests"
. Only if these conditions are fulfilled and the processing
constitutes lawful processing in accordance with the requirements of Article 5 of Regulation
2018/1725, can the transmission of personal data occur.
According to Article 9(1)(b) of Regulation 2018/1725, the European Commission has to
examine the further conditions for a lawful processing of personal data only if the first
condition is fulfilled, namely if the recipient has established that it is necessary to have the
data transmitted for a specific purpose in the public interest. It is only in this case that the
European Commission has to examine whether there is a reason to assume that the data
subject’s legitimate interests might be prejudiced and, in the affirmative, establish the
proportionality of the transmission of the personal data for that specific purpose after having
demonstrably weighed the various competing interests.
In your application, you do not put forward any arguments to establish the necessity to have
the data transmitted for a specific purpose in the public interest. Therefore, the European
Commission does not have to examine whether there is a reason to assume that the data
subject’s legitimate interests might be prejudiced.
Notwithstanding the above, please note that there are reasons to assume that the legitimate
interests of the data subjects concerned would be prejudiced by disclosure of the personal
data reflected in the documents, as there is a real and non-hypothetical risk that such public
disclosure would harm their privacy and subject them to unsolicited external contacts.
8 Judgment of the Court of Justice of the European Union of 20 December 2017 in Case C-434/16, Peter
Novak v Data Protection Commissioner
, request for a preliminary ruling, paragraphs 33-35,
9 Judgment of the General Court of 19 September 2018 in case T-39/17, Port de Brest v Commission
10 Judgment of 29 June 2010 in Case C-28/08 P, European Commission v The Bavarian Lager Co
EU: C: 2010:378, paragraph 59.
11 Whereas this judgment specifically related to Regulation (EC) No 45/2001 of the European Parliament
and 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, the
principles set out therein are also applicable under the new data protection regime established by the
Consequently, I conclude that pursuant to Article 4(1)(b) of Regulation 1049/2001 and
Article 9(1) (b) of Regulation 2018/1725, access cannot be granted to the personal data, as
the need to obtain access thereto for a purpose in the public interest has not been
substantiated and there is no reason to think that the legitimate interests of the individuals
concerned would not be prejudiced by disclosure of the personal data concerned.
2.2 Protection of the public interest as regards 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:
(a) 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 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"
.12 In this context, the Court of
Justice of the EU 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
The General Court found that "it is possible that the disclosure of European Union
positions in international negotiations could damage the protection of the public interest
as regards international relations"
and "have a negative effect on the negotiating
position of the European Union"
as well as "reveal, indirectly, those of other parties to
14 Moreover, "the positions taken by the Union are, by definition,
subject to change depending on the course of those negotiations and on concessions and
compromises made in that context by the various stakeholders. The formulation of
negotiating positions may involve a number of tactical considerations on the part of the
negotiators, including the Union itself. In that context, it cannot be precluded that
disclosure by the Union, to the public, of its own negotiating positions, when the
negotiating positions of the other parties remain secret, could, in practice, have a
negative effect on the negotiating capacity of the Union"
Certain parts of documents 2 and 5
and the entire documents 9, 10 and 11
withheld, since they reflect the EU's position as regards the ongoing negotiations with
Mercosur with regard to the treatment of relevant agricultural goods subject to the letters.
Releasing that information would pose a significant risk to the good relations between the
EU and the concerned third countries or undermine the EU’s interest. That information
has therefore to remain protected.
12 Judgment in Sison v Council
, C-266/05 P, EU:C:2007:75, paragraph 36
13 Judgment in Council v Sophie in’t Veld
, C-350/12 P, EU:C:2014:2039, paragraph 63
14 Judgment in Sophie in’t Veld v Commission
, T-301/10, EU: T:2013:135, paragraphes 123-125
15 Id., paragraph 125.
2.3 Protection of the public interest as regards ongoing decision-making
Article 4(3) 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.”
The jurisprudence of the EU Courts has recognized that "the protection of the decision
making process from targeted external pressure may constitute a legitimate ground for
restricting access to documents relating to the decision-making process"16
and that the
capacity of its staff to express their opinions freely must be preserved17 so as to avoid the
risk that the disclosure would lead to future self-censorship. As the General Court noted,
the result of such self-censorship "would be that the Commission could no longer benefit
from the frankly-expressed and complete views required of its agents and officials and
would be deprived of a constructive form of internal criticism, given free of all external
constraints and pressures and designed to facilitate the taking of decisions
Certain parts of documents 2 and 5 have been withheld and the access to documents 9,
10 and 11 is refused as they contain information that 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.
Placing 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.
In particular, exposing internal views and considerations expressed in the context of
discussions would be premature at this stage and would subject the Commission to
external pressure, potential manipulation and unfounded conclusions both from external
stakeholders and negotiating partners. It would have a negative impact on decisions still
to be taken by the EU by giving out elements of the Commission's assessment and its
possible future approaches and proposals. This would consequently undermine the
decision-making process of the EU institutions by revealing specific elements taken into
account for the ongoing discussions.
16 Judgment in MasterCard and Others v Commission
, T-516/11, EU:T:2014:759, paragraph 71.
17 Judgment in Muñiz v Commission
, T-144/05, EU:T:2008:596, paragraph 89
18 Judgment in MyTravel v Commission
, T-403/05, EU:T:2008:316, paragraph 52.
2.4 Protection of the public interest as regards 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"
The annex to document 11 has been withheld because its disclosure would reveal specific
data, concerns and interests of external stakeholder. There is a reasonably foreseeable
risk that the public disclosure of this information would harm the commercial interests of
the entity concerned, as it could be exploited by competitors to undermine its competitive
positions in third countries and their relationship with the other economic operators in such
3. OVERRIDING PUBLIC INTEREST
The exceptions laid down in Articles 4(2) first indent and 4(3) of Regulation 1049/2001
apply 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
protected passages and documents 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 protected interests. The public interest in this specific case 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 ongoing negotiations with third
countries without undermining the commercial position of the entities involved or the
ongoing decision-making process.
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
Accordingly, we have also considered whether partial access can be granted to documents 9, 10 and 11
After a careful review, we have concluded that all three documents are entirely covered by
the exceptions described above as it is impossible to disclose any parts of these documents
without undermining the protection of the interests identified in the reply.
In case you 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:
Transparency, Document Management & Access to Documents (SG.C.1)
B - 1049 Brussels
or by email to: [email address]
Annex I: List of documents
Annex II: List of meetings between DG TRADE and industry
Electronically signed on 25/03/2019 18:49 (UTC+01) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563