Ref. Ares(2020)3025851 - 11/06/2020
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR FINANCIAL STABILITY, FINANCIAL SERVICES AND CAPITAL
MARKETS UNION
Director General
Brussels,
FISMA/B4/GSV/av
fisma.b.4(2020)3313749
Ms Pia Eberhardt
Corporate Europe Observatory (CEO)
Rue d'Edimbourg 26
1050 Brussels
Belgium
By registered letter with
acknowledgment of receipt
Advance copy by email:
ask+request-7685-
xxxxxxxx@xxxxxxxx.xxx
Subject: Your request for access to documents (ref GESTDEM 2020/995)
Dear Ms Eberhardt,
Thank you for your e-mail of 19 February 2020, requesting access to documents under
Regulation No 1049/2001 regarding public access to European Parliament, Council and
Commission documents.
Your request is as follows:
“
Under the right of access to documents in the EU treaties, as developed in Regulation
1049/2001, I am requesting
1) a list of all lobby meetings held by DG FISMA since 1 January 2019, in which intra-
EU investment protection (after the termination of EU member states' intra-EU
investment treaties) has been discussed. The list should include: date, Commission
attendees, the name of the organisation(s) attending, and a more precise topic if that
exists;
2) minutes and other notes from these meetings;
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: SPA2 09/044 - Tel. direct line +32 229-66943
3) all correspondence between DG FISMA and lobby groups, in which intra-EU
investment protection (after the termination of EU member states' intra-EU investment
treaties) has been discussed (since 1 January 2019)”.
After a search, twenty-one documents have been identified as falling within the scope of
your access to documents request. We have considered the documents in question. Our
conclusion is that we can give access to five documents which are public, we cannot give
access to one document (minutes of a meeting with a private organization) linked to
ongoing infringements (see point (1) below) and we can give partial access to fifteen
documents because of personal data included in these documents (see point (2) below).
1) It appears from our examination that one of these documents falls within the category of
exceptions to disclosure provided for in Article 4(2), third indent, of Regulation No
1049/2001.
That Article states that ‘(t)he institutions shall refuse access to a document where disclosure
would undermine the protection of […] the purpose of inspections, investigations and
audits, unless there is an overriding public interest in disclosure’.
The decision not to grant access to the document you wish to have access to is based on the
negative effects that disclosure would have on the conduct of investigations of the
Commission in the framework of infringement proceedings under Article 258 of the Treaty
on the Functioning of the European Union.
This infringement investigation calls for genuine co-operation and an atmosphere of mutual
trust between the Commission and the competent administrative body of the concerned
Member State. Only in such a climate, both sides can aspire to a rapid solution of the legal
disputes and also reach such a solution.
This approach has been notably confirmed by the General Court in its recent judgment of 13
September 2013 in case T-111/11
ClientEarth:
‘58. First, it must be observed that, in accordance with settled case-law, the Commission
may legitimately rely on the exception set out in the third indent of Article 4(2) of
Regulation No 1049/2001 in order to refuse access to documents relating to investigations
of a possible contravention of European Union law which might lead to the initiation of
infringement proceedings or which have in fact led to the initiation of such proceedings. In
those circumstances, refusal of access has been considered justified because the Member
States concerned are entitled to expect the Commission to observe confidentiality as regards
investigations, even where a period of time has elapsed since the closure of those
investigations (see API v Commission, paragraph 52 above, paragraph 120 and case-law
cited).
59. In particular, it is clear from the case-law that the disclosure of documents relating to
the investigation stage, during the negotiations between the Commission and the Member
State concerned, could undermine the proper conduct of the infringement proceedings
inasmuch as its purpose, which is, as stated in paragraph 52 above, to induce the Member
State concerned to comply voluntarily with Treaty requirements or, if appropriate, to give it
an opportunity to justify its position, could be jeopardised. This requirement of
confidentiality remains even after the matter has been brought before the Court of Justice,
on the ground that it cannot be ruled out that the discussions between the Commission and the Member State concerned regarding the latter’s voluntary compliance with Treaty
requirements may continue during the court proceedings and up to the delivery of the
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judgment. The preservation of that objective, namely an amicable settlement of the dispute
between the Commission and the Member State concerned before the Court of Justice has
delivered judgment, therefore justifies refusal of access to those documents (see API v
Commission, paragraph 52 above, paragraph 121 and case-law cited)’.
The Court specified in paragraph 75 “
that in a situation where, when the decision to refuse
access was made, the infringement proceedings were ongoing, the Commission was
necessarily required to start from the principle that that general presumption applied to the
documents concerned in their entirety”. This case law thus introduces an exception to the
general rule of concrete and individual checking established by earlier jurisprudence.
In examining your request, the possibility of granting partial access to the requested
document has been taken into consideration. However, it turned out that, after examination
of the document and for the reasons cited above, the document is covered in its entirety by
the exception above mentioned, so that the release of parts of the document cannot be
envisaged.
We note that in your application, you do not put forward any arguments demonstrating that
the documents requested are not covered by the general presumption or that there is an
overriding public interest in disclosure .
For these reasons, we regret to inform you that we cannot grant access to one of the
documents requested, based on the exception of Article 4(2), third indent of Regulation
1049/2001.
2) Having examined the other fifteen documents (see reference below) requested which
are not public1 under the provisions of Regulation (EC) No 1049/2001 regarding
public access to documents, I have come to the conclusion that they may be only
partially disclosed as they contain personal data, in particular names and contact
details. Therefore, some parts of the documents have been blanked out and their
disclosure is prevented by exception to the right of access laid down in Article 4 of
this Regulation, for data protection reasons.
Personal data can only be transmitted under specific exceptional conditions, including if
‘the recipient establishes that it is necessary to have the data transmitted for a specific
purpose in the public interest. According to Article 9(1)(b) of Regulation 2018/1725, the
European Commission also only has to examine the further conditions for a lawful
processing of personal data if the recipient has established that it is necessary to have the
data transmitted for a specific purpose in the public interest. In your request, you do not
put forward any arguments to establish the necessity to have the data transmitted for a
specific purpose in the public interest.
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.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation 1049/2001,
access cannot be granted to the personal data, as the need to obtain access thereto for a
1 References: Ares(2020)2838492 - Ares(2019)4258046, EMT FISMA/9952, EMT FISMA/9951, EMT
FISMA/9622, EMT FISMA/9542, EMT FISMA/9270, EMT FISMA/8530, EMT FISMA/8287, EMT
FISMA/8286, Ares(2019)4889105, Ares(2019)3773812, Ares(2019)4453273, Ares(2020)2797752,
Ares(2019)4258046.
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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.
Should you disagree with the assessment that the redacted data are personal data which
can only be disclosed if such disclosure is legitimate under the applicable rules on the
protection of personal data, you are entitled, in accordance with Article 7(2) of
Regulation 1049/2001, to submit a confirmatory application requesting the Commission
to review this position.
The Secretary-General will inform you of the result of his review within 15 working days
of receipt of your request, and will either grant you access to the document or confirm the
refusal. In the latter event, the Secretary-General will indicate what avenues of appeal are
open to you.
Any correspondence should be sent to the following address:
European Commission
Secretariat-General
Unit C.1. ‘Transparency, Document Management and Access to Documents’
BERL 7/076
B-1049 Bruxelles, or by email t
o: xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
(e-signed)
John BERRIGAN
Enclosure:
Position papers publicly available: Eurochambers, AFEP, Business
Europe, DIHK, Eurocommerce. Documents partially redacted:
Ares(2020)2838492 - Ares(2019)4258046, EMT FISMA/9952,
EMT FISMA/9951, EMT FISMA/9622, EMT FISMA/9542, EMT
FISMA/9270, EMT FISMA/8530, EMT FISMA/8287, EMT
FISMA/8286, Ares(2019)4889105, Ares(2019)3773812,
Ares(2019)4453273, Ares(2020)2797752, Ares(2019)4258046.
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Electronically signed on 10/06/2020 18:26 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563