Ref. Ares(2020)4117196 - 05/08/2020
C(2019) 1464 final
Oppenheim Law Firm
Károlyi u. 12
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION NO (EC) NO 1049/20011
Your confirmatory application for access to documents under
Regulation No (EC) No 1049/2001 - GESTDEM 2018/3547
I refer to your letter of 8 August 2018, registered on the same day, in which you submited
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 No 1049/2001').
SCOPE OF YOUR REQUEST
In your initial application of 27 June 2018, addressed to the Directorate-General for
Energy, you requested access to:
1. ‘[...] detailed information about the exact amount of the subsidy factually paid
(i.e. the cumulative payment);
2. [...] the documents certifying the factual cumulative payment having regard to the
fact that data published and information provided to
European Commission are controversial;
3. [...] a detailed list of the officially accepted costs (detailed network investment
calculation) and the finally accepted costs and provide access to the documents on
the basis of which the European Commission found that
. was eligible
for the cumulative payment factually paid;
Official Journal L 345 of 29.12.2001, p. 94.
Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
4. [...] detailed information about the exact amount finally not paid to
to ineligibility of costs;
5. [...] a detailed list of the ineligible costs and [an explanation] why such costs were
found ineligible by the European Commission.’
In its initial reply of 25 July 2018, the Directorate-General for Energy informed you that
it would reply to your requests for information in accordance with the Code of Good
Administrative Behaviour of the European Commission3. As regards your request for
access to documents, the Directorate-General for Energy informed you that the European
Commission does not hold any documents that would correspond to points 2, 4 and 5 of
your request. The Directorate-General for Energy has identified the following documents
as falling under the scope of your request under points 1 and 3:
- Payment letter and financial table, reference Ares(2011)1204373, (hereafter
- Final Technical Implementation Report and Financial Statement of 15 July 2011,
reference Ares(2011)885272 (hereafter ‘document 2’).
In its initial reply of 25 July 2018, the Directorate-General for Energy refused access to
these documents based on Article 4(2), first indent (protection of commercial interests) of
Regulation (EC) No 1049/2001.
In your confirmatory application, you requested a review of this position, alleging that ‘it
has not been clearly explained why the public interest would be more at stake than if it
were disclosed’. Additionally, you asked the European Commission ‘to check again
whether all documents have been identified to which [you] referred’.
In your letter of 23 August 2018 to the European Commission, you clarified that ‘should
the requested documents contain personal data […], the application and the confirmatory
application [shall be considered] as applications targeting documents in which personal
data of the participants are redacted’. Consequently, all personal data contained in the
requested documents fall out of the scope of this confirmatory application.
Your arguments concern the non-disclosure of documents 1 and 2 and the correct
identification of all documents falling within the scope of your request. The confirmatory
decision addresses these issues below.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation (EC) No 1049/2001, the Secretariat-General conducts a fresh review of the
reply given by the relevant Directorate-General at the initial stage.
3 Code of Good Administrative Behaviour for Staff of the European Commission in Their Relations
with the Public, Official Journal L 267 of 20.10.2000, p. 64.
As a preliminary remark, I would like to clarify that the European Commission replies to
requests for information according to the Code of Good Administrative Behaviour and
not based on Regulation (EC) No 1049/2001. Your request for information contained in
your confirmatory request has been forwarded to the Directorate-General for Energy for
reply, as it cannot be addressed in the context of this confirmatory decision. The latter
reviews the initial decision by the Directorate-General for Energy only as regards your
request for access to documents.
In your confirmatory application, you asked the European Commission to ‘check again
whether all documents have been identified to which [you] referred’. Please note that,
according to Article 2(3) of Regulation (EC) No 1049/2001, ‘[t]his Regulation shall
apply to all documents held by an institution, that is to say, documents drawn up or
received by it and in its possession, in all areas of activity of the European Union’.
Following your request, the European Commission conducted a new thorough search for
documents other than the ones already identified as falling within the scope of this
request. However, the European Commission does not hold any documents other than the
ones already identified. Please note that the right of access only applies to documents in
the possession of the institution.
In your confirmatory application, you request for the first time the Commission Decision
C(2010)7510 of 5 November 2010. Please note that this part of your request is
inadmissible, because the right to make a confirmatory application exists only in the
event of a total or partial refusal of the institution to grant access to the requested
document(s). As you did not request access to this document at the initial stage, you are
not entitled to make a confirmatory application. In case you are still interested in this
document, you are entitled to make an initial request.
In the context of this review, the Secretariat-General consulted the Hungarian and
Romanian authorities, as well as the external auditor, on possible disclosure of the parts
of document 2 that originate from them, in accordance with Article 4(4) and 4(5) of
Regulation (EC) No 1049/2001. The Hungarian and Romanian authorities agreed to the
disclosure of the parts of document 2 originating from them, subject to the redactions of
the personal data contained therein. The European Commission did not receive a reply
from the external auditor.
Following this review, I can inform you that partial access is granted to documents 1 and
2, subject only to very limited redactions of commercially sensitive information.
The reasons for these redactions are set out below.
2.1. Protection of commercial interests
Article 4(2), first indent of Regulation (EC) No 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 requested documents contain details of beneficiaries’ bank accounts. This
information is commercially sensitive, because its public disclosure would undermine the
commercial interests of the beneficiaries. Indeed, the public disclosure of the bank
account details would undermine the integrity of the financial operations of the
beneficiaries. Consequently, the very limited parts reflecting this information are
redacted, based on the exception of Article 4(2), first indent of Regulation (EC) No
1049/2001 (protection of commercial interests).
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(2), first indent of Regulation (EC) No 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.
In your confirmatory application, you indicate that ‘the European Commission subsidized
the construction of the interconnector from public funds. Hence, EU taxpayers (citizens
and companies) have the right to know on what their money was spent.
the firm view that this is an overriding public interest’.
In this context, I would like to refer to the Case C-127/13 P (Strack)
4, 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 rely merely on that principle and its importance. An
applicant has to show in a specific situation why the principle of transparency is in this
case especially pressing and capable, therefore, of prevailing over the reasons justifying
Such a pressing need has not been substantiated for the very limited withheld parts.
While I understand that there could indeed be a public interest in the information about
the promotors of Hungary–Romania gas interconnector, I consider that the interest of the
public in being informed about the use of EU funds has been satisfied both by the
publication of detailed information about the project and its funding and the partial
disclosure of the requested documents.
I therefore conclude that the very limited redactions of bank account details are justified
and that there is no public interest in disclosing this commercially sensitive information
that would override the protection of the commercial interests of the beneficiaries under
Article 4(2), first indent of Regulation (EC) No 1049/2001.
4 Judgment of the Court of Justice of 2 October 2014, Strack v Commission
, Case C-127/13 P,
EU:C:2014:2250, paragraph 128.
5 Ibid, paragraph 129.
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.
For the Commission