Ref. Ares(2020)4117196 - 05/08/2020
C(2019) 1928 final
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject: Your confirmatory application for access to documents under Regulation
(EC) No 1049/2001 – GESTDEM 2018/6541
I refer to your email of 8 January 2019, registered on 9 January 2019, in which you
submitted 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 (EC) No 1049/2001'). Please accept our apologies for the
delay in replying.
In your initial application of 29 November 2018, you submitted a request for access to the
following documents: ‘[c]lear EU documents that MSC 139(76) ANNEX 2 Mandatory Ship
Reporting System in Adriatic Sea i[s] replaced with SafeSeaNet (EMSA)’. You further
specified that you wanted to know when this change, if any, was made and you requested
access to the ‘[n]otification to the IMO-MSC about that change’.
Your request was handled by the Directorate-General for Mobility and Transport, as only
the latter was concerned by it.3
Official Journal L 345 of 29.12.2001, p. 94.
Official Journal L 145 of 31.5.2001, p. 43.
Initially, your request was split between the Directorate-General for Communications Networks, Content
and Technology (referenced under number GESTDEM 2018/6539), the Directorate-General for Mobility
and Transport (referenced under number GESTDEM 2018/6541) and the Directorate-General for
Maritime Affairs and Fisheries (referenced under number GESTDEM 2018/6542).
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 229 91111
By letter of 7 January 2019, the Directorate-General for Mobility and Transport informed
you that it does not hold any documents falling within the scope of your request.
In your confirmatory application, you questioned the absence of any documents.
Please note that this confirmatory decision only addresses the questions on the right of
access to documents under Regulation (EC) No 1049/2001. All other issues raised in your
application, which do not relate to the right of access to documents, cannot be addressed in
the context of this decision.
Against this background, 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
documents that would correspond to the description given in your application.
Indeed, as specified in Article 2(3) of Regulation (EC) No 1049/2001, the right of access as
defined in that regulation applies only to existing documents in the possession of the
institution. I would like to refer in this respect to the judgment of the Court of Justice in
Case C-127/13 P (Strack v Commission
), according to which ‘[n]either Article 11 of
Regulation 1049/2001 nor the obligation of assistance in Article 6(2) thereof, can oblige an
institution to create a document for which it has been asked to grant access but which does
The above-mentioned conclusion has been confirmed in Case C-491/15 P (Typke v
), where the Court of Justice held that ‘the right of access to documents of the
institutions applies only to existing documents in the possession of the institution concerned
and […] Regulation No 1049/2001 may not be relied upon to oblige an institution to create
a document which does not exist. It follows that, […], an application for access that would
require the Commission to create a new document, even if that document were based on
information already appearing in existing documents held by it, falls outside the framework
of Regulation No 1049/2001’.5
Furthermore, the General Court held in Case T-468/16 (Verein Deutsche Sprache v
that there exists a presumption of lawfulness attached to the declaration by the
institution asserting that documents do not exist.6 This presumption continues to apply,
unless the applicant can rebut it by relevant and consistent evidence.7 The Court of Justice,
ruling on an appeal in Case C-440/18 P, has recently confirmed these conclusions.8
4 Judgment of the Court of Justice of 2 October 2014, Strack v Commission
, Case C-127/13 P,
EU:C:2014:2250, paragraph 46.
5 Judgment of the Court of Justice of 11 January 2017, Typke v Commission
, Case C-491/15 P,
EU:C:2017:5, paragraph 31.
6 Judgment of the General Court of 23 April 2018, Verein Deutsche Sprache v Commission
, Case T-468/16,
EU:T:2018:207, paragraphs 35-36.
8 Order of the Court of Justice of 30 January 2019, Verein Deutsche Sprache v Commission
, Case C-440/18
P, EU:C:2019:77, paragraph 14.
In your application, you request access to ‘[c]lear EU documents that MSC 139(76)
ANNEX 2 Mandatory Ship Reporting System in Adriatic Sea i[s] replaced with SafeSeaNet
(EMSA)’. Please note in this regard that the SafeSeaNet, a network for maritime data
exchange, linking together maritime authorities from across Europe, does not replace any
mandatory ship reporting system. EU Member States notify mandatory ship reporting
systems to the International Maritime Organisation (‘IMO’). Such mandatory ship reporting
systems may subsequently be connected to the SafeSeaNet system, but are not replaced by
it. Therefore, the European Commission does not hold any EU documents regarding the
replacement of the mandatory ship reporting system by SafeSeaNet in the Adriatic Sea.
Given that the European Commission does not hold any documents corresponding to the
description given in your application, it is not in a position to fulfil your request.
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