Ref. Ares(2020)4042983 - 31/07/2020
EUROPEAN COMMISSION
DIRECTORATE-GENERAL
TAXATION AND CUSTOMS UNION
The Acting Director-General
Brussels,
TAXUD.E2/Svdv – taxud.e.2(2020)4523863
Mrs Melissa Heikkila
POLITICO
Rue de la Loi 62
BE - 1040 Brussels
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
(by e-mail and registered mail)
Dear Mrs Heikkila
,
Subject: Your application for access to documents – Ref GestDem No 2020/3941
We refer to your e-mail dated 29 June 2020, in which you make a request for access to documents,
registered under the above-mentioned reference number. The request has been split between DG
TRADE (request 2020/3942) and DG TAXUD (request 2020/3941). The current reply covers the
latter request.
You request access to the following documents:
“All documentation (including but not limited to all email correspondence, attendance lists,
agendas, background papers, and minutes/notes) relating to the meetings listed below, up to the
current date of 29 June May 2020.
1. 24/01/2020 between Commissioner Paolo Gentiloni and Facebook Ireland Limited
2. 23/01/2020 between Commissioner Paolo Gentiloni and Booking.com B.V.
3. 23/01/2020 between Commissioners Paolo Gentiloni and Apple Inc.
The documents are grouped per meeting. Be informed that for these meetings no minutes are
available. A general briefing was prepared for the meetings held in Davos with these technology
companies. The
list with documents identified are in
annex to this letter.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: SPA3 6/62 - Tel. direct line +32 229-69875
xxxxxxxx.xxxxx@xx.xxxxxx.xx
Your application has been dealt with in accordance with Regulation 1049/2001 on public access to
Commission documents. The third parties (Facebook, Booking.com and Apple) were consulted as
concerns the e-mails and letters originating from them. In particular, they have been consulted
because personal data of their representatives and staff is mentioned in these documents.
1) Meeting with Facebook Ireland Ltd on 24/01/2020
Doc 1 – e-mail 16/1/2020: meeting with representatives of Facebook.
Following from Regulation (EC) No 1049/2001 and based on the consultation with Facebook, we
have come to the conclusion that the document may be disclosed. Some references to persons’
names and other personal data have been redacted (see below under
Personal data).
2) Meeting with Booking.com BV on 23/01/2020
Doc 2 – e-mail dated 19/12/2020: meeting with representatives of Booking.com
Doc 3 – letter of Booking.com dated 18/12/2020
Following from Regulation (EC) No 1049/2001 and based on the consultation with Booking.com,
we have come to the conclusion that the documents may be disclosed. Some references to
persons’ names and other personal data have been redacted (see below under
Personal data).
3) Meeting with Apple Inc. on 23/01/2020
Doc 4 – e-mail dated 13/12/2020: meeting with representatives of Apple Inc.
Doc 5 – letter of Apple Inc. dated 6/2/2020
Doc 6 – Letter of Commissioner Gentiloni dated 17/2/2020
Following from Regulation (EC) No 1049/2001 and based on the consultation with Apple Inc, we
have come to the conclusion that the document may be partially disclosed.
Apple Inc. did not object to the disclosure of the e-mail and the letter relating to the meeting with
the Apple Inc. representatives, provided that indications about the travel schedule of the CEO
were redacted in accordance with Article 4(1) (b) of Regulation (EC) No 1049/2001. All
personally identifiable data have been redacted (see below under
Personal data)
4) Doc 7 – Briefing for meetings with tech companies
Following from Regulation (EC) No 1049/2001, we have come to the conclusion that the
document may be partially disclosed.
Please, note that the briefing also covers information of companies that are not within the scope
of the three meetings mentioned in your request.
Some parts in
doc 7 have been redacted, because the Commission considers that they concern
confidential information:
- The information on page 10 includes preliminary assessments of companies’ (also companies not
covered by your request) global profits as regards the impact of Digital Services Taxes.
Disclosing this information in the context of digital economy taxation may be sensitive and have
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a negative impact on the commercial interests of these companies and on the international
relations with the countries where these multinational companies are located.
- The information on pages 12-13 concerns background information about the negotiations in the
OECD. Digital taxation is a delicate matter that touches upon the tax legislation of the Member
States. Disclosure would be potentially harmful for the public interest as regards international
relations, because negotiations are currently ongoing at international level in the OECD
framework, which aims to achieve a global solution. Moreover, it may not only have an impact
on the tax policy of Member States, but also on large companies with activities across the EU. In
addition, disclosure of the positions of Member States would undermine the ongoing decision-
making process.
Therefore, access to these parts of the documents cannot be granted in accordance with the
exceptions laid down in:
- the third indent of Article 4 (1) (a) of Regulation 1049/2001 which stipulates that
"The
institutions shall refuse access to a document where disclosure would undermine the protection
of the public interest as regards (…) international relations";
- the first indent of Article 4 (2) of Regulation 1049/2001, which stipulates that “
the
institutions shall refuse access to a document where disclosure would undermine the protection
of the commercial interests of a natural or legal person, including intellectual property, (...)
unless there is an overriding public interest in disclosure”.
- Article 4 (3), first subparagraph of Regulation 1049/2001, which stipulates that
“Access to a
document, drawn up by an institution for internal use or received by an institution, which relates
to a matter where the decision has not been taken by the institution, shall be refused if disclosure
of the document would seriously undermine the institution's decision-making process, unless
there is an overriding public interest in disclosure”.
Please note further that there is no overriding public interest in disclosure of these parts of the
documents which would outweigh the harm disclosure would cause to the interests protected by
the invoked exceptions. It is considered that this risk is foreseeable and not purely hypothetical.
Personal data
The
documents 1 to 6 to which you are granted access contain personal data.
We consider that, with the information available, the necessity of disclosing the aforementioned
personal data to you has not been established and that it cannot be assumed that such disclosure would
not prejudice the legitimate rights of the persons concerned. Therefore, we are disclosing
documents 1
to 6 expunged from these personal data (Commission/company staff names and functions, handwritten
signatures, telephone numbers and office addresses)
Pursuant to Article 4(1) (b) of Regulation (EC) No 1049/2001, access to a document has to be refused if
its disclosure would undermine the protection of privacy and the integrity of the individual, in particular
in accordance with Community legislation regarding the protection of personal data. The applicable
legislation in this field is Regulation (EC) No 2018/1725. Pursuant to Article 9(1)(b) of Regulation
2018/1725, ‘
personal data shall only be transmitted to recipients established in the Union other than
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Union institutions and bodies if the recipient establishes that it is necessary to have the data
transmitted for a specific purpose in the public interest and the controller, where there is any reason to
assume that the data subject’s legitimate interests might be prejudiced, establishes that it is
proportionate to transmit the personal data for that specific purpose after having demonstrably
weighed the various competing interests’.
Confirmatory
In case you would disagree with the overall assessment of the documents or with the assessment that the
expunged data are personal data which can only be disclosed if such disclosure is legitimate under the
rules of personal data protection, you are entitled, in accordance with Article 7(2) of Regulation
1049/2001, 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 7/067
B-1049 Brussels
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours faithfully,
Benjamin ANGEL
Annexes: as stated above
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Electronically signed on 31/07/2020 10:49 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563