Ref. Ares(2020)3546913 - 06/07/2020
EUROPEAN COMMISSION
DIRECTORATE-GENERAL INFORMATICS
The Acting Director-General
Brussels, Date as Postmark
DIGIT.A.3.001/MK
Mr Mathias Schindler
Bundestagsbüro Julia Reda, MdEP
Unter den Linden 50,
DE-11011 Berlin
By email with acknowledgment of
receipt to:
ask+request-8002-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – GESTDEM 2020/3360
Dear Mr Schindler,
We refer to your e-mail dated 2 June 2020 in which you make a request for access to
documents, registered on 3 June 2020 under the above mentioned reference number.
You request access to the licensing agreements currently in force with Microsoft
concerning the use of the Microsoft Windows operating system, as well as invoices,
procurement documents and memos on bulk licensing and on all information concerning
extended warranty and support for Microsoft Windows.
1. Scope of your request
In order to identify the documents relevant to your request, we have divided the documents
falling within the scope of your application into the following categories. Please note that
certain documents are mentioned below as part of the documents’ package for the sake of
completeness, even though they do not fall within the scope of your application.
A. Licensing agreements, which include the following documents:
#
Document
Date of signature
Ares reference
A1
DI 07670 Interinstitutional Licensing 07/05/2020
(2020)2392209 – 06/05/2020
Agreement (“ILA”)/ Master Business
and Services Agreement Amendment
ID CTM
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Commission européenne, 2920 Luxembourg, LUXEMBOURG - Tel. +352 43011
Office: MO15 07/P001 - Tel. direct line +352 4301-58522
A2
DI 07670 – ILA/ Enterprise Agreement 07/05/2020
(2020)2392209 – 06/05/2020
Amendment ID CTM
A3
DI 07670 – ILA/ Online Services 07/05/2020
(2020)2392209 – 06/05/2020
Terms Amendment ID CTM
A4
DI 07670 – ILA/ Data Protection 07/05/2020
(2020)2392209 – 06/05/2020
Addendum Amendment ID CTM
A5
DI 07670 – ILA/ Program Signature 07/05/2020
(2020)2392209 – 06/05/2020
Form
A6
DI
07670
– ILA/Select
Plus 13/12/2018
(2018)6426143 – 12/12/2018
Agreement Contract Tie Addition
Amendment ID M486
Please note that there is no specific licensing agreement for the licensing of Microsoft
Windows. The licensing of Microsoft Windows is governed within the ILA, together with
the licensing of other products and services of Microsoft and such provisions cannot be
separated. Also note, that as regards document A6 above (DI 07670 – ILA/Select Plus
Agreement Contract Tie Addition Amendment ID M486), this agreement is not related to
the licensing of any products from Microsoft and therefore, we consider that it does not fall
under the scope of your request.
The majority of the agreements forming the ILA with Microsoft have been extensively
renegotiated and amended in 2020 (4th Amendment of the ILA).
B. Procurement documents, which include the following documents according to
Article 2(50) of the Financial Regulation1:
#
Document
Date
Ares reference
Comments
B1
Invitation to negotiate
28/07/2017
(2017)3808447 - -
28/07/2017
B2
Tendering specifications -
28/07/2017
(2017)3808447 - -
Microsoft licenses
28/07/2017
(DIGIT/A3/PN/2017/041) and
high-level services
(DIGIT/A3/PN/2017/040),
including the following annexes:
B2a
Annex I-Ia: Declaration on honour
-
B2b
Annex I-Ib: Cover letter for
-
tenderer
1 Regulation (EU) Euratom 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules
applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No
1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014 and Decision
No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012.
2
B2c
Annex I-2: Service level
Outside of the scope of
requirements
the request (refers only
to Microsoft’s services
and not licenses of
Windows)
B2d
Annex I-3: EMAS Environmental
-
Policy
B2e
Annex I-4: Cloud Services Security
Outside of the scope of
Framework
the request (refers only
to Microsoft’s services
and not licenses of
Windows)
B2f
Annex I-5: Cloud Service
Outside of the scope of
Requirements
the request (refers only
to Microsoft’s services
and not licenses of
Windows)
B2g
Annex I-6: Cloud Services
Outside of the scope of
Questionnaire
the request (refers only
to Microsoft’s services
and not licenses of
Windows)
B3
Contract Award Notice
05/04/2018
-
Public document
Please note that the invitation to negotiate and the tendering specifications cover two
separate negotiated procedures:
Procedure ref. DIGIT/A3/PN/2017/041 concerns Microsoft licenses
Procedure ref. DIGIT/A3/PN/2017/040 concerns the provision of related Microsoft
high-level services
DIGIT/A3/PN/2017/040 for the provision of high-level professional services does not
concern the licensing of Microsoft products and thus does not fall within the scope of your
request. Nevertheless, since it is not possible to separate the documents in a practical way,
we will provide you access to those combined documents as well.
C. Invoices on licensing and extended support and warranty, which include the
following documents:
#
Document
Date of signature
Ares reference
C1
Order Form No OF 39-CE for the 08/01/2020
(2020)98490 - 08/01/2020
purchase of informatic equipment
in execution of the Framework
Contract DI/07470
C2
Order Form No DI07722-OF-
11/05/2020
(2020)2500676 – 11/05/2020
3827 for software products,
maintenance and support in
execution of the Framework
Contract DI/07722
3
Please note that the Commission does not put its orders directly with Microsoft but through
an authorised reseller, which has been contracted in a separate call for tenders. The
Commission does not order single products, but subscribes to a license bundle (“scenario”),
the composition and price of which is the result of commercial negotiations with Microsoft.
The Commission orders this bundle for a yearly fee; the fee is calculated using a formula
that involves a fixed price “per user” and a user number calculated on the basis of the staff
figures published in the Official Journal of the EU. This relationship is depicted in the
aforementioned documents.
I consider that the disclosure of the Order Forms instead of the invoices issued by the
authorised reseller is preferable since (a) they include the same and even more elaborate
information on the aforementioned ordering mechanism than the invoices and (b) they are
not issued by the authorised reseller and therefore do not constitute documents of a “third
party”, which would require the consultation of such third party prior to any disclosure.
D. Memos on bulk licensing and extended support and warranty
No documents have been identified under this category.
2. Assessment of your request
Having examined the documents requested under the provisions of Regulation (EC) No
1049/2001 regarding public access to documents (“Regulation”), I have come to the
following conclusions regarding each category of identified documents,
falling within the
scope of your request:
2.1. Your request to access licensing agreements - Conclusion of the assessment
Following assessment of the documents requested, I regret to inform you that the
aforementioned agreements
cannot be disclosed to you in their final signed form, as they
are covered by the exception of Article 4(2) first indent of Regulation.
2.1.1. Applicability of the exception concerning the protection of commercial
interests
According to Article 4(2) first indent of the Regulation,
“The 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”.
The relevant legal provisions related to transparency about contracts awarded and
expenditure incurred by the EU institutions confirm that such commercial interests exist in
this area and need to be duly taken into account. More particularly:
-
Article 90 of the Financial Regulation2 lays down the Commission’s transparency
requirements in relation to the publication of various types of procurement notices.
2 Regulation (EU) Euratom 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules
applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No
1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014 and Decision
No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012.
4
However, Article 90(1) states that “
Publication of certain information after the
contract has been awarded may be dropped where it would hinder the application of
the law, would be contrary to the public interest or would harm the legitimate
business interests of public or private undertakings or could distort fair competition
between them.”
-
Article 30(3) of the Financial Regulation requires the Commission to make available
information on the beneficiaries of funds deriving from the budget but “
with due
observance of the requirements of confidentiality”.
Against this background, two different commercial interests need to be considered: those of
the Commission and the other EU Institutions, Agencies and other Bodies (“EUIs”), on the
one hand, and those of the contractors on the other hand.
2.1.1.1. Protection of the commercial interests of the Commission and the other
EUIs
In order to fulfil its own needs for goods and services, the Commission (together with other
EUIs) needs to ensure that public money is spent in accordance with the principle of sound
financial management, and to be able to preserve its capacity to benefit from the best
conditions offered by economic operators.
The licensing agreements, as well as the Order Forms contain (a) information about the
composition of the products and services developed by the contractor in order to tailor the
needs of the Commission and other EUIs, (b) information about the prices quoted for such
products and services and (3) the concessions made by the contractor as regards the standard
contractual terms, taking into account the status of the Commission and the other EUIs, as
major customers.
The disclosure to the general public of such sensitive information would clearly undermine
the Commission’s capacity to ensure sound financial management by obtaining the best
possible value for money in future procurement procedures and its credibility as a reliable
business partner, which respects its confidentiality obligations towards its contractors.
2.1.1.2. Protection of the commercial interests of the contractor
The requested agreements contain details about the offers submitted by the contractors in
the context of public procurement procedures, be it call for tenders or negotiations. These
offers include specific input from the contractor, which reflects their technical and
commercial know-how and the methodology they have put in place to deliver the products
or to provide the services, as well as price information.
The exception concerning the protection of commercial interests of a third party, as laid
down in the Regulation, is an expression of the Commission’s general obligation of
professional secrecy, which originates from Article 330 of the Treaty of the Functioning of
the EU and applies specifically to “information about undertakings, their business relations
or their cost components”. This means that the Commission has to take all the necessary
measures to protect such information. In addition to the above, contractual relationships are
to be covered by the principle of good faith. Based on this principle, the parties shall expect
from each other to respect the confidentiality about the performance of an agreement, where
such confidentiality is necessary for the protection of the other party’s legitimate interests.
The disclosure to the general public of such information would clearly undermine the
protection of the contractor’s expertise, strategy, creativity, capacity to innovate and thus
5
their commercial strength, not only as an undertaking but also as the contractor of the
Commission.
2.1.1.3. Partial access to third party documents
Although the agreements cannot be described as third-party documents, to the extent that
specific parts originate by third parties, Article 4(4) of the Regulation can be applied by
analogy. Therefore, I have applied Article 4(4) in consideration of providing you with
partial access to the ILA.
The Commission considers that it is possible to provide you with access to the initial
versions of the agreements with Microsoft which constitute the ILA. These agreements
constitute the templates provided by Microsoft to the Commission, on the basis of which the
two parties negotiated specific terms. More particularly, access is provided to the following
documents:
#
Disclosed document
Corresponding signed document (reference to the
table of page 1)
1
Microsoft Business and Services Agreement DI 07670 Interinstitutional Licensing Agreement
(WW)(Feb2017)
(“ILA”)/ Master Business and Services Agreement
Amendment ID CTM (A1)
2
Microsoft Enterprise Agreement EU-EFTA DI 07670 – ILA/ Enterprise Agreement Amendment
(July2016)
ID CTM (A2)
3
Microsoft Online Services Terms (Sept2017) DI 07670 – ILA/ Online Services Terms Amendment
ID CTM (A3)
4
Microsoft Online Services – Data Protection DI 07670 – ILA/ Data Protection Addendum
Addendum (January 2020)
Amendment ID CTM (A4)
5
Microsoft
Enterprise
and
Enterprise DI 07670 – ILA/ Enrollment Agreement (A7)
Subscription Enrollment Product Selection
Form (WW)(Sept2017)
6
Microsoft
Enterprise
Subscription
Enrollment (Indirect) Corporate (July2016)
7
Microsoft Product Terms (WW)(Sept2017)
Forms a part of DI 07670 – ILA/ Enterprise
Agreement Amendment ID CTM (A2)
8
Service Level Agreement for Microsoft Referenced by DI 07670 – ILA/ Online Services
Online Services (Sept2017)
Terms Amendment ID CTM (A3)
9
Microsoft
Program
Signature
Form DI 07670 – ILA/Program Signature Form
(EMEA)(Oct2013)
The Commission has consulted Microsoft on the disclosure of the above listed template
contracts and Microsoft did not object to such disclosure.
The differences between the documents listed above and the signed final ones are the result
of the procurement procedure and the individual commercial negotiations with Microsoft.
The final versions contain the information described under 2.2.1 and are therefore covered
by the exception laid down in Article 4(2), 1st indent of the Regulation.
6
2.1.1.4. Overriding public interest
The exception under Article 4(2), 1st indent of the Regulation may only be waived if “
there
is an overriding public interest in disclosure”.
In your application you do not refer to any such interest and after examining the request, I
have not identified any such interest that would outweigh the commercial interests of the
Commission and the contractor.
2.2. Your request to access procurement documents - Conclusion of the assessment
After assessing your request, I would like to inform you that I can provide you with
full
access to the contract award notice (document B3), which is a public document and can be
found here:
http://ted.europa.eu/udl?uri=TED:NOTICE:156359-2018:TEXT:EN:HTML
I can also provide you with full access to the Annexes of the Tendering specifications
(documents B2a, B2b and B2d).
As regards the rest of the documents, which fall within the scope of your request, I can
provide you with
partial access, as the exceptions laid down in Article 4(2) first indent and
Article 4(1)(b) of the Regulation apply.
2.2.1. Applicability of the exception concerning the protection of commercial
interests
With regard to the Tendering specifications, some parts of the document have been blanked
out, as they include information the disclosure of which would undermine the commercial
interests of the Commission and the contractor. In particular, the redacted parts include
information on the parameters of the licensing agreement and the proposal of the tenderer,
as set out by the Commission. The disclosure to the general public of such information
would clearly undermine the protection of the contractor’s strategy and offer to meet the
needs of the Commission
As in your application you do not refer to a public interest in the disclosure of such
information and after examining the request, I have not identified any such interest that
would outweigh the commercial interests of the Commission and the contractor, I consider
that the exception cannot be waived.
2.2.2. Applicability of the exception concerning the protection of privacy and
integrity of the individuals
With regard to the invitation to negotiate (document B1), a complete disclosure of the
identified document is prevented by the exception concerning the protection of privacy and
the integrity of the individual outlined in Article 4(1)(b) of Regulation (EC) No 1049/2001,
because they contain the following personal data:
-
the names/initials and contact information of Commission staff members not
pertaining to the senior management;
-
the names/initials and contact details of other natural persons;
-
handwritten signatures/abbreviated signatures of natural persons
7
Article 9(1)(b) of the Data Protection Regulation3 does not allow the transmission of these
personal data, except if you prove that it is necessary to have the data transmitted to you for
a specific purpose in the public interest and where there is no reason to assume that the
legitimate interests of the data subject might be prejudiced. In your request, you do not
express any particular interest to have access to these personal data nor do you put forward
any arguments to establish the necessity to have the data transmitted for a specific purpose
in the public interest.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data contained in the requested
documents, 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.
2.3. Your request to access invoices - Conclusion of the assessment
With regard to the documents C1 and C2, I have concluded that I can provide you with
partial access to such documents, as the exceptions of Article 4(2) 1st indent and Article
4(1)(b) apply, as further explained below.
2.3.1. Applicability of the exception concerning the protection of commercial
interests
The Order Forms listed above include information on the prices paid by the Commission to
the authorised reseller for the provision of Microsoft’s products and services. The disclosure
of such information would undermine the commercial interests of the Commission and
Microsoft.
The analysis concluded under sections 2.1.1 (with the exception of sub-section 2.1.1.3)
apply to documents C1 and C2 as well.
2.3.2. Applicability of the exception concerning the protection of privacy and
integrity of the individuals
The documents C1 and C2 contain the following personal data:
-
the names/initials and contact information of Commission staff members not
pertaining to the senior management;
-
the names/initials and contact details of other natural persons;
-
handwritten signatures/abbreviated signatures of natural persons
The analysis under section 2.2.2. apply for these documents as well.
3. Further information on extended support and warranty
In your application you requested access to documents concerning extended warranty and
support for Microsoft Windows. In your reply to our clarification request as received on 15
June 2020, you mentioned that “
such extended warranty and support is relevant among
other topics when it comes to the lack of proper support for existing Windows 7 computers
after January 14, 2020. Other dates might apply for other software”.
3 Regulation (EU) 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, OJ L 295, 21.11.2018,
p. 39.
8
No further documents exist, which could include further information in relation to the
above. For your information, please note that as regards extended support, the Commission
orders extended support for Windows 7 for a limited number of devices running legacy
systems, when a migration to Windows 10 is not (yet) possible for technical reasons. The
vast majority of Commission devices, however, runs Windows 10.
You may reuse public documents, which have been produced by the European Commission
or by public and private entities on its behalf based on the
Commission Decision on the
reuse of Commission documents. You may reuse the document B3 disclosed free of charge
and for non-commercial and commercial purposes provided that the source is acknowledged
and that you do not distort the original meaning or message of the document. Please note
that the Commission does not assume liability stemming from the reuse.
Please note that documents originating from third parties are disclosed to you based on
Regulation (EC) No 1049/2001. However, this disclosure is without prejudice to the rules
on intellectual property, which may limit your right to reproduce or exploit the released
documents without the agreement of the originator, who may hold an intellectual property
right on them. The European Commission does not assume any responsibility from their
reuse.
4. Means of redress
In accordance with Article 7(2) of Regulation (EC) No 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:
European Commission
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1)
BERL 7/076
B-1049 Brussels
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours faithfully,
E-signed
Mário Campolargo
Enclosure:
See ANNEX 1 – LIST OF DISCLOSED DOCUMENTS
9
ANNEX 1 – LIST OF DISCLOSED DOCUMENTS
Identified document
Access granted
1
Microsoft Business and Services Agreement
Partial access
(WW)(Feb2017)
2
Microsoft Enterprise Agreement EU-EFTA (July2016)
Partial access
3
Microsoft Online Services Terms (Sept2017)
Partial access
4
Microsoft Online Services – Data Protection Addendum
Partial access
(January 2020)
5
Microsoft Enterprise and Enterprise Subscription
Partial access
Enrollment Product Selection Form (WW)(Sept2017)
6
Microsoft Enterprise Subscription Enrollment (Indirect)
Partial access
Corporate (July2016)
7
Microsoft Product Terms (WW)(Sept2017)
Partial access
8
Service Level Agreement for Microsoft Online Services
Partial access
(Sept2017)
9
Microsoft Program Signature Form (EMEA)(Oct2013)
Partial access
10 Invitation to negotiate, (Ares(2017)3808447 -
Partial access
28/07/2017) (redacted)
11 Tendering specifications for Microsoft licenses
Partial access
(DIGIT/A3/PN/2017/041) and high-level services
(DIGIT/A3/PN/2017/040), (Ares(2017)3808447 -
28/07/2017) (redacted)
12 Annex I-Ia: Declaration on honour, (Ares(2017)3808447 Full access
- 28/07/2017)
13 Annex
I-Ib:
Cover
letter
for
tenderer, Full access
(Ares(2017)3808447 - 28/07/2017)
14 Annex I-3: EMAS Environmental Policy,
Full access
(Ares(2017)3808447 - 28/07/2017)
15 Contract Award Notice (link under 2.2.)
Full access
16 Order Form No OF 39-CE for the purchase of informatic
Partial access
equipment in execution of the Framework Contract
DI/07470, (Ares(2020)98490 - 08/01/2020) (redacted)
17 Order Form No DI07722-OF-3827 for software products, Partial access
maintenance and support in execution of the Framework
Contract DI/07722 – (Ares(2020)2500676 – 11/05/2020)
(redacted)
10
Electronically signed on 06/07/2020 14:44 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563