Document 4
Ref. Ares(2020)3092549 - 15/06/2020
EUROPEAN COMMISSION
Brussels, 10.1.2019
C(2019) 150 final
OUT OF SCOPE
Belgium
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2018/3690
Dear
,
I refer to your letter of 5 September 2018, registered on the same day, 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 (hereafter ‘Regulation 1049/2001’).
1.
SCOPE OF YOUR REQUEST
In your initial application of 3 July 2018, addressed to the Directorate-General for
Agriculture and Rural Development, you requested access to documents described as
follows:
a) ʻ[I]n the minutes of the meeting held on 30 March 2011 (st point 2) reference is
made to a discussion of cases where Mexico detected violations regarding Tequila
on the European market. This was done on the basis of list (referred to in the
minutes on 3 June 2013, at point 4);
b) In the minutes of the meeting held on 3 June 2013, reference is made (st point 4)
to documents presented by the Tequila Regulatory Council involving products
1
Official Journal L 345 of 29.12.2001, p. 94.
2
Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
produced in the EU that are considered by Mexico to be a clear infringement of
the geographical indication Tequila.ʼ
The European Commission has identified two documents as falling under the scope of
your request:
1) ʻTequila cases found by the Tequila Regulatory Council to be informed to the
European Commission (Ares(2018)4023479)’;
2) Verification Reports in the European Market (Reportes de Verificación en el
Mercado Europeo) (Ares(2018)4023509).ʼ
As the requested documents originate from the United Mexican States, and in accordance
with Article 4(4) of Regulation 1049/2001, the Directorate-General for Agriculture and
Rural Development consulted the Mexican authorities as to the possible disclosure of the
documents concerned.
The Mexican authorities opposed the disclosure of the documents on the basis of Article
4(2), first indent (protection of commercial interests of a natural or legal person,
including intellectual property) of Regulation 1049/2001.
Following
the
opposition
of
the
Mexican
authorities,
the Directorate-General for Agriculture and Rural Development, taking into account the
reply of the Mexican authorities, refused access to both documents based on the
exceptions protecting commercial interests and international relations defined
respectively in Article 4(2), first indent and Article 4(1)(a), third indent of Regulation
1049/2001.
Through your confirmatory application, you request a review of this position. You
underpin your request with detailed arguments, which I will address in the corresponding
sections below.
2.
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 of the European Commission conducts
a fresh review of the reply given by the Directorate-General concerned at the initial stage.
In this context, the Secretariat-General of the European Commission re-consulted the
Mexican authorities based on Article 4(4) of Regulation 1049/2001 with a view to
assessing whether an exception in paragraph 1 or 2 could be applicable to the requested
documents, which originates from that third party.
At the confirmatory stage, the authorities of the United Mexican States continued to
object to the disclosure of the documents originating from their authorities on the basis of
the exception provided for in Article 4(2), first indent (protection of commercial
interests, including intellectual property) of Regulation 1049/2001.
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Following the confirmatory review and taking into account the reply of the Mexican
authorities, I regret to inform you that I have to confirm the initial decision of the
Directorate-General for Agriculture and Rural Development to refuse access, based on
the exceptions of Article 4(2), first indent (protection of commercial interests, including
intellectual property) and Article 4(1)(a), third indent (protection of the public interest as
regards international relations) of Regulation 1049/2001, for the reasons set out below.
2.1. Protection of the public interest as regards international relations
Article 4(1)(a), third indent of Regulation 1049/2001 provides that ‘the institutions shall
refuse access to a document where disclosure would undermine the protection of […] the
public interest as regards […] international relations […]’.
The requested documents were submitted to the European Commission by the Mexican
authorities in the context of the meetings of the Joint Committee on Spirit Drinks. They
originate from the Tequila Regulatory Council that is accredited as a Verification Unit
and as a Certification Organisation by the General Bureau of Standards of the Mexican
Secretary of the Economy. This non-profit organisation has been accredited by the
Mexican government to oversee and certify that the production, bottling and labelling of
Tequila is done according to the Official Mexican Standard of Tequila. It also closely
follows and monitors the enforcement of the Agreement between the European Union
and the Mexican States on the mutual recognition and protection of designations for spirit
drinks3.
In accordance with Article 4(4) of Regulation 1049/2001, the European Commission
re-consulted the Mexican authorities at confirmatory stage. The latter expressed their
renewed objection to the disclosure of the documents in question to any third parties.
Therefore, the communication of these documents against the third-country partner's
objection could be considered by the latter as a breach of trust and could lead to a refusal
to transmit certain information to the European Commission, in particular to the Joint
Committee on Spirit Drinks, in the future. It would negatively impact the functioning of
the Joint Committee on Spirit Drinks and any future cooperation on geographical
indications4 and their protection in the EU.
The requested documents list cases of alleged fraud, and brands that allegedly use and/or
sell pseudo-Tequila throughout the European Union. Some of these possible fraudulent
uses are already subject to legal actions taken by the Mexican authorities against Member
States for Tequila piracy, on which the EU and the Mexican authorities cooperate closely
and attentively follow further developments. Furthermore, both parties are examining
possible actions on spirits' geographical indications.
3
Official Journal L 152, 11.6.1997, p. 16-26.
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Geographical indications are an important EU policy and the EU has a clear interest in cooperating
with its trade partners, especially in the framework of recognition, registration and enforcement of
their protection.
3
I would also like to point out that Article 4(1)(a) of Regulation 1049/2001 has an
absolute character and does not envisage the possibility to demonstrate the existence of
an overriding public interest.
2.1. Protection of commercial interests of natural or legal person
Article 4(2), first indent of Regulation 1049/2001 stipulates 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 General Court found that documents, whose disclosure would seriously undermine
the commercial interests of a legal person, ʻcontain commercially sensitive information
relating, in particular, to the business strategies of the undertakings concerned or their
commercial relations or where those documents contain information particular to that
undertaking which reveal its expertise.ʼ5
The requested documents contain confidential business information regarding Mexican
producers of Tequila. In addition, they include the list of disputes in the EU between the
Mexican authorities, the Mexican Tequila producers and the EU companies selling
Tequila in the internal market of the EU without any certification and authorisation. They
contain the names of products, trademarks not certified by the Mexican authorities to be
sold as Tequila in the EU, the geographical areas where they can be found, information
on their producers, the EU companies selling these products, actions to be taken by the
Mexican authorities against them, including the proposed legal actions.
This information needs to be qualified as commercially sensitive.
It can be presumed that the Mexican authorities provided these documents that include
commercially sensitive information to the European Commission under the legitimate
expectation that it would not be publically released.
Therefore, there is a real and non-hypothetical risk that the disclosure of this sensitive
business information, at this stage, would adversely affect the commercial interests and
activities of the concerned companies, in particular in the competitive context, within the
meaning of Article 4(2), first indent of Regulation 1049/2001.
3.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(2), first indent 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.
5 Judgments of 5 February 2018,
PTC Therapeutics Ltd v European Medicines Agency, T-718/15
EU:T:2018:66, paragraphs 84-85 and
MSD Animal Health Innovation GmbH v European Medicines
Agency, T-729/15, EU:T:2018:67, paragraphs 67– 68.
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In your confirmatory application, you claim that ʻwhat disclosure of these allegations
and/or evidence would reveal is the type of conduct in the EU which the Mexican
authorities and/or Mexican Tequila producers represented by the Tequila Regulatory
Council consider to be infringing on the protection they derive from 1997 Agreement.
This is of interest to private stakeholders in the EU (such as consumers and potential
users of the product and the name Tequila) who tries to understand the implications of
this Agreement for them.ʼ
In that regard, I would like to refer to the judgment in the
Strack case, where the Court of
Justice ruled that in order to establish the existence of an overriding public interest in
transparency, it is not sufficient to merely rely on that principle and its importance.
Instead, an applicant has to show why in the specific situation the principle of
transparency is in some sense especially pressing and capable, therefore, of prevailing
over the reasons justifying non-disclosure.6
In my view, such a pressing need has not been substantiated in this case. While I
understand that there could indeed be a private and public interest in the subject matter
covered by the documents requested, I consider that such a public interest in transparency
would not, in this case, outweigh the need to protect the commercial interests of the
companies concerned.
I therefore consider that in this case, the public interest is better served by keeping the
requested documents undisclosed in conformity with the interests protected by the
exception of Article 4(2), first indent of Regulation 1049/2001
Please note also that Article 4(1)(a), third indent of Regulation 1049/2001 does not
include the possibility for the exceptions defined therein to be set aside by an overriding
public interest.
4.
NO PARTIAL ACCESS
In accordance with Article 4(6) of regulation 1049/2001, I have considered the possibility
of granting partial access to the documents requested. However, for the reasons explained
above, no meaningful partial access is possible without undermining the interests
described above.
Consequently, I have come to the conclusion that the documents requested are covered in
their entirety by the involved exceptions to the right of public access.
6 Judgment of 2 October 2014,
Strack v European Commission, C-127/13 P, EU:C:2014:2250, paragraph
131.
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5.
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
European Ombudsman under the conditions specified respectively in Articles 263 and
228 of the Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Martin SELMAYR
Secretary-General
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