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Ref. Ares(2019)3157032 - 13/05/2019
EUROPEAN COMMISSION
Directorate-General for Trade
The Director General
Brussels, 13 May 2019
By registered letter with acknowledgment
of receipt
Mr Bart-Jaap Verbeek
Centre for Research on Multinational
Corporations (SOMO)
Sarphatistraat 30
1018 GL Amsterdam
The Netherlands
Advance copy by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – Ref GestDem 2019/286
Dear Mr Verbeek,
I refer to your request of 15 January 2019 for access to documents under Regulation (EC)
No 1049/2001
1 ("Regulation 1049/2001") and hereinafter registered as GestDem 2019/286.
This request follows your previous request for access to the documents, which were
identified under the scope of your request GestDem 2018/4306.
Please accept our apologies for the delay in answering your request, which is mainly due to
the high number of requests for access to documents being processed at the same time by the
Directorate-General for Trade (hereinafter ‘DG TRADE’).
1.
SCOPE OF YOUR REQUEST
Under the present request, you are referring to your initial request for documents as
registered under Gest Dem 2018/4306, which concerns the following:
1) a list of meetings between DG Trade officials and/or representatives (including the
Commissioner and the Cabinet) and stakeholders, including trade unions, civil society
groups, as well as representatives of individual companies, industry associations, law firms,
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
link to page 2
academics, public consultancies and think tanks in which the EU-Indonesia Free Trade
Agreement was discussed (between January 2016 and today);
2) minutes and other reports of these meetings;
3) all correspondence (including emails, letters, faxes) between DG Trade officials and/or
representatives (including the Commissioner and the Cabinet) and stakeholders, including
trade unions, civil society groups, as well as representatives of individual companies,
industry associations, law firms, academics, public consultancies as well as think tanks
regarding the EU-Indonesia Free Trade Agreement (between January 2016 and today);
4) all correspondence (including emails, letters, faxes) and documents (including briefings,
memo's, non-papers) shared between DG Trade officials and/or the Commissioner and the
Cabinet in which the EU-Indonesia Free Trade Agreement was discussed (between January
2016 and today).
On 21 September 2018 we had sent you the list of the identified 223 documents, including
their title, the type of document and its date.
The Commission replied to your request for selected identified documents with a letter dated
21 December 2018.
On 15 January 2019 you expressed your interest to obtain access also to documents 111 to
136 in a list of identified documents which the Commission had submitted to you. Please
note that documents 111 to 114 have already been assessed in our previous reply of 21
December 2018. We have therefore replaced them by documents 137 to 140 of the list sent
to you on 21 September 2018.
A list of the documents covered in this reply is enclosed in Annex 1. For each of the
documents 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 enclosed.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
In accordance with settled case law
2, 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 the institution takes the view that
disclosure would undermine the protection of any of the interests defined under Articles 4(2)
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.
2
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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 documents
4, "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 you full access to annex a of document 132 and partial access to the
remaining documents except to documents 120, 127, 128, 134, annex a of document 134 and
136.
In documents 119, 122, 125, 126, 129, 130, 131, 132, 135, 138, 139, 140, annexes a and c of
document 118 and annex a of document 131 only names and other personal data have been
redacted pursuant to Article 4(1)(b) of Regulation 1049/2001 and in accordance with
Regulation (EC) No 2018/1725. Hence, the main content of these documents is accessible.
In documents 115, 116, 117, 118, annex b of document 118, 121, 123, 124, 133 and 137, in
addition to personal data, additional information was redacted as it is covered either by the
exception set out in Article 4(1)(a) third indent of Regulation 1049/2001 (protection of the
public interest as regards international relations) or by the exception set out in Article 4(2) first
indent of Regulation 1049/2001 (protection of the commercial interest of a natural or legal
person) or in accordance with Article 4(3).
Please note that parts of documents that do not relate to your request have been redacted as
falling out of scope.
Access is not granted to documents 120, 127, 128, 134, annex a of document 134 and 136,
as their disclosure is prevented by the exception set out in Article 4(3) of Regulation
1049/2001 (protection of the commercial interest of a natural or legal person) and in
accordance with Article 4(1)(a) third indent of Regulation 1049/2001 (protection of the public
interest as regards international relations). Some information in these documents is also
protected pursuant to Article 4(1)(b) of Regulation 1049/2001 (protection of privacy and
integrity of the individual).
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 and section 4 considered whether partial access could be granted to the
documents withheld.
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.
3
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2.1
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: 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 appreciation".6 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"7.
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 the negotiations".8
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".9
The EU and Indonesia are currently negotiating a free trade agreement.
Documents 118, 121, 123, 133 and 137 contain internal views either from the EU or from
Indonesia and other countries. These views cannot be disclosed without undermining the
mutual trust and hence the negotiations between the EU and Indonesia as these views could
reveal strategic considerations of either side.
Access to documents 120, 127, 128, 134, annex a of document 134 and 136 is not granted as
their disclosure would reveal strategic interests, priorities and business concerns of the EU. As
such, this information could indirectly reveal negotiating priorities, strategic objectives and
tactics, which the EU could consider pursuing in its trade negotiations.
More generally, it remains important for the EU when negotiating with its counterpart to
retain a certain margin of manoeuvre to shape and adjust its tactics, options and positions in
order to safeguard the EU's interests. Exposing internal views and considerations would
6
Judgment in
Sison v
Council, C-266/05 P, EU:C:2007:75, paragraph 36.
7
Judgment in
Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039, paragraph 63.
8
Judgment in
Sophie in’t Veld v Commission, T-301/10, EU:T:2013:135, paragraphs 123-125.
9
Id., paragraph 125.
4
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weaken the negotiating capacity of the EU and consequently, the protection of the public
interest as regards international relations.
There is a reasonably foreseeable risk that the public disclosure of the protected information
would undermine and weaken the position of the EU in its ongoing trade negotiations with
Indonesia. Indeed, the information contained in these documents would allow the EU’s
trading partner to draw conclusions with respect to certain detailed positions, concerns,
views and strategies of the Commission and of its Member States. This in turn may allow
the counterpart to extract specific concessions from the EU in the context the ongoing
negotiations, thus to the disadvantage of the EU’s international relations, and the interests of
its citizens, consumers and economic operators.
Furthermore, some of the withheld passages reveal the position of Indonesia. Such
disclosure is likely to upset the mutual trust between the EU and Indonesia and thus
undermine their relations. It may also jeopardise the mutual trust between the EU and other
trading partners as they may fear that in the future their positions would be exposed and they
may as a result refrain from engaging with the EU. Negotiating partners need to be able to
confide in each other's discretion and to trust that they can engage in open and frank
exchanges of views without having to fear that these views and positions may in the future
be publicly revealed. As the Court recognised in Case T-301/10
in’t Veld v Commission,
“[…] establishing and protecting a sphere of mutual trust in the context of international
relations is a very delicate exercise"10.
The abovementioned passages must, therefore, remain protected.
2.2
Protection of privacy and 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.
The applicable legislation in this field is Regulation (EC) No 2018/1725 of the European
Parliament and of the Council 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
and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and
Decision No 1247/2002/EC
11 (‘Regulation 2018/1725’).
All the documents partially released contain personal information, such as names, e-mail
addresses, telephone numbers that allow the identification of natural persons, as well as
other personal information like signatures.
Indeed, 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
10
Judgment in
Sophie in’t Veld v European Commission, T-301/10, EU:T:2013:135, paragraph 126.
11
Official Journal L 205 of 21.11.2018, p. 39.
5
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has specified that
any information, which by reason of its content, purpose or effect, is linked
to a particular person is to be considered as personal dat
a.12 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.
13 In its judgment in Case C-28/08 P (
Bavarian Lager)
14, the Court of Justice ruled that when a
request is made for access to documents containing personal data, the Data Protection
Regulation becomes fully applicable
15
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
"[t]he 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
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, we do not have to
examine whether there is a reason to assume that the data subject’s legitimate interests might be
prejudiced.
12
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,
ECLI:EU:T:2018:560.
13
Judgment of the General Court of 19 September 2018 in case
T-39/17, Port de Brest v Commission,
paragraphs 43-44,
ECLI:EU:T:2018:560.
14
Judgment of 29 June 2010 in Case C-28/08 P,
European Commission v The Bavarian Lager Co. Ltd,
EU:C:2010:378, paragraph 59.
15
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 Regulation 2018/1725.
6
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2.3
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".
While not all information concerning a company and its business relations can be regarded
as
falling under the exception of Article 4(2) first indent
16, it appears that the type of information
covered by the notion of commercial interests would generally be of the kind protected under
the obligation of professional secrecy
17. Accordingly, it must be information that is
"known
only to a limited number of persons",
"whose disclosure is liable to cause serious harm to the
person who has provided it or to third parties" and for which
"the interests liable to be harmed
by disclosure must, objectively, be worthy of protection "18.
Some passages in documents 115, 116, 117, 118, annex b of document 118, 121, 124 and 137
have been withheld because they contain business sensitive information pertaining to an
organisation, a company or group of companies, including details about commercial priorities,
objectives, strategies, concerns and interests that they pursue in their respective domains.
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. 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. Sharing publicly specific business related information that companies share
with the Commission may prevent the Commission from receiving access to such
information in the future.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
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 parts of
documents 115, 116, 117, 118, annex b of document 118, 121 and 124 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
16
Judgment in
Terezakis v Commission, T-380/04, EU:T:2008:19, paragraph 93.
17
See Article 339 of the Treaty on the Functioning of the European Union.
18
Judgment in
Bank Austria v Commission, T-198/03, EU:T:2006:136, paragraph 29.
7
continues to receive useful contributions for its ongoing negotiations with third countries
without undermining the commercial position of the entities 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 could be granted to
documents 120, 127, 128, 134, annex a of document 134 and 136. However, and after a
careful review, we have concluded that this is not possible.
The content of those documents is entirely covered by the exceptions described above and it
is thus impossible to disclose any parts of these documents without undermining the
protection of the interests identified in this 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:
8
European Commission
Secretary-General
Transparency, Document Management & Access to Documents (SG.C1)
BERL 5/282
1049 Bruxelles
or by email to
: xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
Jean-Luc DEMARTY
Encl.:
• Annex 1: List of documents
• Documents plus annexes including fully and partially released documents
9