Ref. Ares(2020)6824063 - 17/11/2020
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR COMMUNICATIONS NETWORKS, CONTENT AND TECHNOLOGY
The Director-General
Brussels
CONNECT/R.4
Mr Max Bank
LobbyControl
Am Justizzentrum 7
50939 Köln
GERMNAY
Advance copy by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
REGISTERED LETTER WITH ACKNOWLEDGEMENT OF RECEIPT
Subject:
Your application for access to documents – GestDem 2020/4274
Dear Mr Bank,
I refer to your request for access to documents pursuant to Regulation (EC) No 1049/2001
of the European Parliament and of the Council of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents1 (hereinafter 'Regulation
1049/2001'), introduced via email on 14 July 2020, registered on the same date under the
abovementioned reference number.
Furthermore, I refer to our acknowledgment receipt provided to you on 14 July 2020, our
reference Ares(2020)3708405, and to our holding replies of 5 August 2020,
Ares(2020)4117032 and 27 August 2020, Ares(2020)4460817.
Please note that due to the wide scope of your request, covering also areas falling under
the responsibility of different Directorates-General, parts of your request have been
attributed to other Directorates-General2 and are answered directly by them. The present
reply relates only to the documents originating in the Directorate-General for
Communications Networks, Content and Technology (‘DG CONNECT’). You have
received or will receive the replies from the other respective Directorates-General in due
course.
1
Official Journal OJ L 145, 31.5.2001, p. 43.
2
GestDem 2020/5194:
DG GROW;
GestDem 2020/5195:
DG SANTE;
GestDem 2020/5197:
DG ENER.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx
1.
SCOPE OF YOUR APPLICATION
By your application, you request access to the following:
‘All documents – including but not limited to minutes, (hand-written) notes, audio
recordings, verbatim reports, operational conclusions, lines to take, e-mails, and
presentations, correspondence (i.e. any emails, correspondence, telephone call notes,
and/or text messages including WhatsApp exchanges) – related to the following meetings
Commissioner Breton and members of his Cabinet have held with interest
representatives since 01 March 2020;
20/04/2020
Video Conference
Associazione Nazionale Costruttori Edili (ANCE) CAISSE DES DEPOTS (CDC)
Koninklijke Vereniging MKB-Nederland (MKB-Nederland) Wienerberger AG European
Construction Industry Federation (FIEC) Compagnie de SAINT-GOBAIN Construction
Products Europe European Builders Confederation AISBL (EBC)
20/04/2020
video conference
ArcelorMittal (AM)
European Plastics Converters Association (EuPC) HeidelbergCement (HC) Minafin
Group CEMBUREAU - The European Cement Association (CEMBUREAU) Eni S.p.A.
FuelsEurope (FuelsEurope)
The European Steel Association (EUROFER) European Chemical Industry Council
(Cefic) MOL Hungarian Oil and Gas Company (MOL Group)
11/05/2020
Videoconference
Telefonica, S.A.
08/05/2020
Videoconference
European Coordination Committee of the Radiological, Electromedical and healthcare
IT Industry (COCIR) MedTech Europe (MTE) European Federation of Pharmaceutical
Industries and Associations (EFPIA) Association of the European Self-Care Industry
(AESGP) Vaccines Europe (VE) European Confederation of Pharmaceutical
Entrepreneurs (EUCOPE)
07/05/2020
Videoconference
Nestlé S.A. (Nestlé (SIX: NESN))
Mondelez Europe GmbH (MDLZ)
FoodDrinkEurope (FoodDrinkEurope)
05/05/2020
videoconference
OVH
05/05/2020
Videoconference
European Utilities Telecom Council (EUTC)
2
04/05/2020
Videoconference
ENEL SpA
Ørsted A/S
Akuo Energy
Hydrogen Europe (HE)
Siemens Gamesa Renewable Energy (SGRE)
30/04/2020
Videoconference
European Digital Rights (EDRi)
30/04/2020
videoconference
Fnac Darty
PostNL Holding B.V. (PostNL)
Bolt
Allegro.pl sp. z o.o. (Allegro.pl)
GlovoApp23, S.L. (Glovo)
Ahold Delhaize
Zalando SE
29/04/2020
Videconference
European Coordination Committee of the Radiological, Electromedical and healthcare
IT Industry (COCIR) MedTech Europe (MTE) European Federation of Pharmaceutical
Industries and Associations (EFPIA) Association of the European Self-Care Industry
(AESGP) Vaccines Europe (VE) European Confederation of Pharmaceutical
Entrepreneurs (EUCOPE) MEDICINES FOR EUROPE (-)
28/04/2020
Videoconference
American Chamber of Commerce to the European Union (AmCham EU)
25/05/2020
Videoconference
SANOFI
18/05/2020
videoconference
Dompé farmaceutici spa
11/05/2020
Videoconference
Minafin Group
Covestro AG
BASF SE
Shell Companies (Shell)
EVONIK INDUSTRIES AG
SABIC International Holdings B.V. (SABIC) Dow Europe GmbH (Dow) ExxonMobil
Petroleum & Chemical (EMPC) European Chemical Industry Council (Cefic)’.
The meetings falling within the remit of DG CONNECT are the following:
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(1) 11/05/2020 – videoconference – Telefonica, S.A.
(2) 05/05/2020 – videoconference – European Utilities Telecom Council (EUTC)
(3) 05/05/2020 – videoconference – OVH
(4) 30/04/2020 – videoconference – European Digital Rights (EDRi)
(5) 30/04/2020 – videoconference – Fnac Darty, PostNL Holding B.V. (PostNL),
Bolt, Allegro.pl sp. z o.o. (Allegro.pl), GlovoApp23, S.L. (Glovo), Ahold Delhaize,
Zalando SE
2.
DOCUMENTS FALLING WITHIN THE SCOPE OF THE APPLICATION
We have identified the following documents as falling within the scope of your request:
- With regard to the videoconference of 05/05/2020 with OVH:
Briefing: Entretien entre le Commissaire Thierry Breton et OVH on
‘cloud’, Brussels, 5 May 2020 (
Annex 1)
- With regard to the videoconference of 30/04/2020 with European Digital Rights
(EDRi):
Briefing: Meeting with EDRi,
(Annex 2)
Email: [EDRi and Access Now, civil society] Request for meeting_1,
(Annex 3)
Email: [EDRi and Access Now, civil society] Request for meeting_2,
(Annex 4)
Paper: European Digital Rights (EDRi),
(Annex 5)
Paper: Access Now: The European human rights agenda in the digital age
(Annex 6)
- With regard to the videoconference of 30/04/2020 with Fnac Darty, PostNL
Holding B.V. (PostNL), Bolt, Allegro.pl sp. z o.o. (Allegro.pl), GlovoApp23, S.L.
(Glovo), Ahold Delhaize, Zalando SE:
Back To Office (BTO) Report: Video-conference with large European
eCommerce platform companies (COVID-19 pandemic Structured
Engagement with Industry), 30 April 2020
(Annex 7)
With regard to a) the videoconference of 11/05/2020 with Telefonica, S.A. and b) the
videoconference of 05/05/2020 with EUTC, we regret to inform you that the
Commission does not hold any documents that would correspond to the description given
in your application.
3.
ASSESSMENT UNDER REGULATION 1049/2001
Following an examination of the identified documents under the provisions of Regulation
1049/2001 and taking into account the opinion of the third parties we have arrived at the
conclusion that they can be partially disclosed. Disclosure of some parts of the
documents is prevented by exceptions to the right of access laid down in Article 4 of
Regulation 1049/2001.
(i) Protection of the privacy and integrity of the individual
4
Full disclosure of Annexes 1-7 is prevented by the exception concerning the protection of
privacy and the integrity of the individual outlined in Article 4(1)(b) of
Regulation 1049/2001, since they contain the following personal data:
-
the names and contact details of Commission staff members not pertaining to the
senior management;
-
the names, functions, CV and contact details of other natural persons;
-
other information relating to an identified or identifiable natural person, i.e. photos and
personal opinions.
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 did
not express any particular interest to have access to these personal data nor did 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 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.
(ii) Protection of commercial interests
Article 4(2) first indent of Regulation 1049/2001 provides that 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, unless
there is an overriding public interest in disclosure.
This provision must be interpreted in light of Article 339 of the Treaty of the Functioning
of the European Union (TFEU), which requires staff members of the EU institutions to
refrain from disclosing information of the kind covered by the obligation of professional
secrecy, in particular information about undertakings, their business relations or their cost
components.
Parts of Annex 1 contain commercially sensitive, non-public information relating to the
concerned third party’s positions and activities.
Parts of Annex 7 also contain commercially sensitive information relating to the
concerned third parties’ views, positions and activities.
Disclosure of these parts of the documents would seriously undermine the third parties’
commercial interests.
(iii) Protection of the decision-making process
The first subparagraph of Article 4(3) of Regulation 1049/2001 provides that ‘[a]ccess to a
document, drawn up by an institution for internal use or received by an institution, which
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.
5
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.’
The second subparagraph of Article 4(3) of Regulation 1049/2001 provides that ‘[a]ccess to
a document, containing opinions for internal use as part of deliberations and preliminary
consultations within the institution concerned shall be refused even after the decision has
been taken if disclosure of the document would seriously undermine the institution’s
decision-making process, unless there is an overriding public interest in disclosure.’
Annex 1 contains parts covered by the aforementioned exception of Article 4(3) first
subparagraph. In particular, they relate to matters where the decision has not been taken by
the Commission yet. Disclosure of these parts would seriously undermine the protection of
the ongoing decision-making process.
Annex 1 contains also parts, which are covered by the aforementioned exception of Article
4(3) second subparagraph. This document is a briefing prepared for the respective meeting.
Parts of this briefing contain preliminary views and reflections, which were under
consideration at that time. Disclosure of these parts of the document would seriously
undermine the Commission’s functioning and internal decision-making process and deter
Commission services and officials from putting forward their views and without being
unduly influenced by the prospect of wide disclosure exposing the Commission.
Consequently, the above-mentioned parts of Annex 1 have been blanked out.
4.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Articles 4(2) and 4(3) of Regulation 1049/2001 apply,
unless there is an overriding public interest in the disclosure of documents. Such an
interest must, firstly, be a public interest and, secondly, outweigh the harm caused by
disclosure. We have examined whether there could be an overriding public interest in the
disclosure of the aforementioned parts of the documents but we have not been able to
identify such an interest.
5.
REUSE OF DOCUMENTS
Annexes 1-2 and 7 were drawn up for internal use under the responsibility of the relevant
services. They solely reflect the services’ interpretation of the interventions made and do
not set out any official position of the third parties to which the documents refer, which
were not consulted on their content. They do not reflect the position of the Commission
and cannot be quoted as such. You may reuse these documents, which have been
produced by the Commission 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 documents. Please note that the Commission does not
assume liability stemming from the reuse.
Annexes 3-6 originate from third parties. Please note that they 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 originators, who may hold an
intellectual property right on them. The European Commission does not assume any
responsibility from their reuse.
6
6.
CONFIRMATORY APPLICATION
In accordance with Article 7(2) of Regulation 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 Secretariat-General of the Commission at the following
address:
European Commission
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1)
BERL 7/076
1049 Brussels
BELGIUM
or by email t
o: xxxxxxxxxx@xx.xxxxxx.xx.
Yours sincerely,
(e-Signed)
Roberto Viola
Enclosures: (7)
7
Electronically signed on 16/11/2020 17:45 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482
Document Outline