Ref. Ares(2020)4117196 - 05/08/2020
In your initial application, you underlined that ‘[you are] not seeking [access to] the
actual content of the flash cards’ and that you application covers ‘non-important
information (short-living documents, drafts, emails that are not filed)’.
Your application was attributed to the Directorate for Interinstitutional and External
Relations of the Secretariat-General of the European Commission for handling and reply.
In its initial reply of 13 December 2018, the Directorate for Interinstitutional and
External Relations of the Secretariat-General of the European Commission informed you
that it does not hold any documents such as those referred to you in your initial
application. Indeed, according to the reply of the Directorate for Interinstitutional and
External Relations of the Secretariat-General of the European Commission, the flash-
cards themselves were considered as short-lived support material and the same applies to
all categories of documents listed in your initial application.
In your confirmatory application, you request a review of this position. In particular, you
argue that ‘[t]he European Commission is applying an absurdly narrow definition of
“document” that is not backed up by the Regulation 1049/2001’. You also underline that
‘[if it applied] a reasonably broad definition of [the] document, including less relevant
ones, not registered or archived ones such as memos, drafts, notes, emails, etc, the
Commission could have answered to [your] request for documents’.
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 Directorate-General concerned at the initial stage.
At the outset, I would like to recall that, according to a well-established case law, the
right of access to documents of the institutions applies only to existing documents in the
possession of the institution concerned3.
Following your confirmatory application, the European Commission has carried out a
renewed, thorough search for the documents requested. Following this renewed search, I
confirm that the European Commission does not hold any document to which you refer
in point a) (‘[l]ist of documents […]) and c) (‘emails, notes, memos, protocols, letters,
drafts […] concerning the design and approval process of [the] flash cards’) of your
With regard to point b) of your confirmatory application, relating to ‘[t]he visual and
graphical elements used to create [the] flash cards’, the documents, which contain the
content of the ‘flash cards’, are the following:
3 Judgment of the Court of Justice of 11 January 2017, Typke v Commission,
C-491/15 P, EU:C:2017:5,
paragraph 31 and Judgement of the Court of Justice of 30 January 2019, Verein Deutsche Sprache,
C-448/18 P, EU:C:2019:77, paragraph 14.
- Keynote speech 'Transatlantic relations at a crossroads' by President Juncker at
the Centre for Strategic and International Studies (CSIS), publicly available here:
- Statement by President Jean-Claude Juncker at the joint press conference in the
White House Rose Garden with Donald Trump, President of the United States,
publicly available here: http://europa.eu/rapid/press-release SPEECH-18-
- Joint U.S.-EU Statement following President Juncker's visit to the White House,
publicly available here: http://europa.eu/rapid/press-release_STATEMENT-18-
Regarding other documents created by the European Commission specifically for the
purpose of the preparation of the ‘flash cards’, as explained by the Directorate for
Interinstitutional and External Relations of the Secretariat-General of the European
Commission in its initial reply, and in conformity with the abovementioned case-law,
Article 2(3) of Regulation (EC) No 1049/2001 provides that the right of access as defined
in that regulation applies only to existing documents in the possession of the institution.
In line with the wording of the above-mentioned article, the documents should be ‘drawn
up’ or ‘received’ by the institution (in the case at hand, by the European Commission).
In order to consider it as ‘drawn up by the European Commission’ a document must fulfil
certain criteria, among others, it may not contain information that is short-lived and its
contents must be ‘stable’, which means that it must have been endorsed at the appropriate
hierarchical level. If a document fulfils the necessary criteria of ‘document drawn up by
the European Commission’, it is registered in the corporate document management
systems of the European Commission.
Consequently, the documents referred to in point b) of your confirmatory application can
be considered as ‘documents drawn up by the European Commission’, only if the criteria
for considering them as such are met.
Nonetheless, in the case at hand, as explained by the Directorate for Interinstitutional and
External Relations of the Secretariat-General of the European Commission in its initial
reply, the documents concerned were considered as not fulfilling the above-mentioned
criteria and therefore were not registered in the corporate document management systems
of the European Commission. Indeed, as the flash-cards themselves were considered as
short-lived support material, the same applies to the ‘graphical continent’ referred to by
Consequently, the European Commission has not identified any documents (other than
those publicly available mentioned above) held by it that would fall under the scope of
your application for access to documents.
Given that no such documents have been identified, the European Commission is
consequently not in a position to handle your application.
MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress that are available
against this decision, that is, judicial proceedings and complaints to the Ombudsman
under the conditions specified respectively in Articles 263 and 228 of the Treaty on the
Functioning of the European Union.
For the Commission