Ref. Ares(2020)5414834 - 12/10/2020
EUROPEAN COMMISSION
RESEARCH EXECUTIVE AGENCY
Legal Affairs, Internal Control and Reporting
Head of Sector
Brussels,
REA C0.1
Ms Hanna Rullmann
xxxxxxxxxxxxxx
SE15 1QS London,
UK
Sent by registered email to:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents - Ares(2020)4505232
Dear Ms Rullmann,
We refer to your request for access to documents submitted to the Research Executive Agency
(REA) on 28 August 2020 via the website AskTheEU.org and registered on 31 August 2020 under
reference number Ares(2020)4505232.
A.
SCOPE OF YOUR REQUEST
In your application you request:
“1. All deliverable documents so far produced in regards to the FOLDOUT project, and a list of all
document titles and reference numbers of these deliverables.
2. In particular the FOLDOUT Early Demonstrator Evaluation (mentioned here:
https://cordis.europa.eu/project/id/787021/reporting ).
3. Minutes of all meetings concerning FOLDOUT. In particular the meeting that took place in
Brussels
on
January
28th,
2020
(mentioned
here:
https://urldefense.com/v3/__https://di.mod.bg/en/news/bulgarian-defence-institute-participant-
foldout-european-
project__;!!DOxrgLBm!RBkhyNCYX13E3j1NToVziAlrVSfiA5_sY_4vKpHHovRbVSOP5iIJvMGfnD
34jyJhC7d74FE0SFrH$ ).
4. Any presentation slides produced by FOLDOUT project partners for use at meetings.
5. Any ethical assessments of the FOLDOUT proposal held by REA.”
Agence exécutive pour la recherche, B-1049 Bruxelles / Uitvoerend Agentschap Onderzoek, B-1049 Brussel – Belgium. Telephone: (32-
2) 299 11 11.
Office: COV2-08/28 - Tel. direct line (32-2) 2991510 - Email: xxxxxxx.xxxxxx@xx.xxxxxx.xx
On 11 September 2020, after examination of the scope of your request, we have informed you that
your application concerned a very large number of documents, which needed to be individually
assessed, and the majority of which originates from third parties, which need to be consulted. In
light of the above, we have informed you that we would not be in the position to handle your
request within the time limits set out in Article 7 of the Regulation (EC) No 1049/2001 and
therefore, in accordance with Article 6(3) of the Regulation, we have conferred with you to find a
fair solution.
In this context, you were invited to specify the objective of your request, your specific interest in
the requested documents, and to narrow down the scope of your request (i.e. the subject matters
and/or timeframe covered), so as to reduce it to a more manageable amount of documents. In order
to help you to narrow down your request we have provided the categories of documents with
number of documents identified as falling within the scope of your request:
Deliverables: 28
Minutes: 2
Presentations: 39
Reports: 2
We specified that the length of these documents varies widely, from 1 to more than 150 pages and
that a reasonable estimate would be that the requested documents would be more than 70
documents and represent at least 1756 pages.
We also stated that according to our preliminary estimates, and subject
inter alia to others tasks that
the REA staff concerned are likely to have to deal with during the same period, the third-party
consultation and the length and/or complexity of the documents at stake, the handling of your
request would take around 50 working days.
It followed that REA would be able to handle a maximum of 15 documents within the remaining
days from the extended deadline of 30 working days counting from the date of registration of your
application.
On 16 September 2020, you replied having made a selection and asked for the following
documents:
“D3.1 Legal and ethical state of the art
D4.1 Report on user requirements and operational aspects
D4.2 Use cases and scenarios
D5.4 FOLDOUT System Architecture Design Report
D6.3 Physical communication network hardware/software with documentation for ground-
based solutions
D10.1 Integration Plan and Test Descriptions
D11.4 Exploitation Plan
Minutes Kick Off Meeting 03.09.2018
Minutes Kick Off Meeting 05.09.2018
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FOLDOUT OBJ1 status and plan
FOLDOUT OBJ2 status and plan
FOLDOUT OBJ6 Improve situational awareness through fusion Status and plans
FOLDOUT OBJ7 status and plan
"FOLDOUT OB8 Demonstrate effectiveness of FOLDOUT concept in realistic operational
scenarios"
FOLDOUT OB9 status and plan
FOLDOUT OB11 Ensure that the FOLDOUT developments are in line with EU Legal-
Ethical-Privacy rules
FOLDOUT_PartnerPresentation_Practicioners_KEMEA.”
We have replied on the same day and informed you that REA accepted your selection of 17
documents; we considered that a fair solution has been reached and informed you that REA would
reply to your request by 12 October 20201.
This request is handled within the scope of Regulation (EC) No 1049/2001 regarding public access
to European Parliament, Council and Commission documents2.
B.
DISCLOSURE OF THE REQUESTED DOCUMENTS
As a preliminary point, I would like to stress that security research aims at fostering a collaborative
process to explore new ideas and technologies. The funded EU security research projects (the
H2020 project FOLDOUT in this case) do not terminate with “development and deployment” of
such ideas and technologies, as indicated in your confirmatory application.
The results of EU security research projects are only assessed based on their scientific and
technological soundness and not linked to decisions related to the effective implementation years
after the research work is completed. The objective of such research projects is to explore different
ideas of how to address certain security challenges that Europe is facing and foster a collaborative
process where different actors across the EU test their ideas.
Research does not deliver products to the market or enforce their uptake by public authorities. EU
security research projects achieve a Technology Readiness Level (TRL) between 6 – 8 (see General
Annexes for the definition3 ). To be noted that “development and deployment” are outside of the
TRL scale.
After the completion of a research project, beneficiaries, who are the owner of the results, would
still need to further invest their own resources for some years before “developing and deploying”
tools to the market. Before deciding to further invest, those companies would need to consider the
1 Ares(2020)4853323
2 Regulation (EC) N° 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public
access to European Parliament, Council and Commission documents, OJ L145, 31.05.2001, page 43, hereinafter
“Regulation N° 1049/2001.
3
https://ec.europa.eu/research/participants/data/ref/h2020/wp/2014_2015/annexes/h2020-wp1415-annex-g-trl_en.pdf
3
scientific reliability of the research and also the political, societal, ethical and financial
implications, together with the need to respect the international, EU and national legislation in
force.
Having examined the documents requested under the provisions of Regulation (EC) N° 1049/2001
regarding public access to documents, we consider that the documents listed in Annex 1 to this
letter are related to your request. In Annex 1 we mention the legal grounds under Regulation (EC)
N° 1049/2001 applicable to each of the listed documents.
Concerning the exceptions to the right of access laid down in Articles 4(1) (a) first indent, 4(1) (b)
and 4(2) first indent of Regulation (EC) No 1049/2001, namely the protection of the public interest
as regards public security, the protection of privacy and the integrity of the individual, in particular
in accordance with EU legislation regarding the protection of personal data and the protection of
commercial interests of a natural or legal person including intellectual property we recall the
following:
Protection of the public interest as regards public security
Article 4(1) (a), first indent, of Regulation 1049/2001 provides that
“[t]he institutions shall refuse
access to a document where disclosure would undermine the protection of the public interest as
regards public security”.
Expunged parts of deliverables D4.1 and D4.2 of the project FOLDOUT describe use case
scenarios, namely the potential threats to the border safety and security, as identified by the
competent Law Enforcement Agencies (LEAs) of Bulgaria, Greece, Finland, Lithuania and French
Guiana, the objectives of such scenarios, the potential actions, actors and the equipment to respond
to such threats, as well as the relevant geographical areas/ pilot test areas.
Disclosure of such information could provide intelligence and insights to the strategy of the
authorities, to those persons, groups or entities that could impede the authorities’ efforts to counter
illegal activities at the border, seriously undermining the public interest as regards public security.
The exception laid down in Article 4(1) (a) first indent of Regulation (EC) No. 1049/2001 does not
include the possibility for the exceptions defined therein to be set aside by an overriding public
interest.
Protection of privacy and integrity of the individual
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 integrity of the individual,
in particular in accordance with EU legislation regarding the protection of personal data.
The applicable legislation in this field is Regulation (EU) No 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
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free movement of such data, and repealing Regulation (EC) 45/2001 and Decision No
1247/2002/EC4 (hereinafter “Regulation 2018/1725”).
All documents to which you requested access, contain personal data of individuals such as the
name, surname, email, address, telephone number, fax number, signature or other personal data of
staff of the consortium or of REA that are not in the public domain. Indeed, Article 3(1) of
Regulation 2018/1725 provides that personal data ‘
means any information relating to an identified
or identifiable natural person […]’. The Court of Justice has specified that any information, which
by reason of its content, purpose or effect, is linked to a particular person is to be considered as
personal data5.
In its Judgment in case C-28/08/P (Bavaria Lager)6, the Court of Justice ruled that when a request is
made for access to documents containing personal data, the Data protection Regulation becomes
fully applicable. Pursuant Article 9 (1) (b) of Regulation (EC) 2018/1725 ‘
personal data shall only
be transmitted to recipients established in the Union other than Union institutions and bodies
if ‘[t]he 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’.
Only if these conditions are fulfilled and the processing constitutes lawful processing in accordance
with the requirements of Article 5 of Regulation 2018/1725, can the transmission of personal data
occur.
According to Article 9(1) (b) of Regulation, REA has to examine the further conditions for a lawful
processing of personal data only if the first condition is fulfilled, namely if the recipient has
established that it is necessary to have the data transmitted for a specific purpose in the public
interest. It is only in this case that REA has to examine whether there is a reason to assume that the
data subject’s legitimate interest might be prejudiced and, in the affirmative, establish the
proportionality of the transmission of the personal data for that specific purpose.
We consider that, in your request, you do not put forward any arguments to establish the necessity
to have the data transmitted. Therefore, REA does not have to examine whether there is a reason to
assume that the data subject’s legitimate interest might be prejudiced. Nevertheless, please note that
there are no reasons to assume that the legitimate interest of concerned individuals would not be
prejudiced by disclosing their personal data. In the present case, disclosure of the personal data of
persons involved in the project in question would harm their privacy.
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 documents requested. Therefore, the personal data
have been redacted.
4 Official Journal L 205 of 21.11.2018, p. 39
5 Judgment of the Court of Justice of the European Union of 20 December 2017 in case C-434/16.
6 Judgment of 29 June 2010 in case C-28/08/P, European Commission v The Bavaria Lager Co. Ltd, EU:C2010:378, paragraph 63.
5
The exception laid down in Article 4(1) (b) of Regulation (EC) No 1049/2001, the protection of
privacy and the integrity of the individual, is an absolute exception that does not have to be
balanced against the public interest in disclosure.
Protection of commercial interests of natural and legal persons
The documents, listed in Annex 1 to this letter to which this exception apply, contain sensitive
commercial information of the entities participating in the project not in the public domain in
particular, the reference to the project consortium intellectual property (background, existing and/or
foreseen foreground), knowhow, methodologies, technologies, potential inventions working
modalities.
The public disclosure of this information would thus seriously undermine the consortium
commercial interests. Accordingly, the exception in Article 4(2) first indent of Regulation (EC) No
1049/2001, has to be invoked and access to this part of the document has to be refused.
Such exception applies, unless there is an overriding public interest in disclosure of the requested
documents. Such an interest must, first, be a public interest and secondly, outweigh the harm caused
by disclosure. In your application, you did not bring forward any argument to justify the existence
of an overriding public interest in releasing the requested documents. In this instance, we have
found no elements that could indicate the existence of such an overriding public interest in the
sense the Regulation (EC) No 1049/2001 that would outweigh the need to protect the commercial
interests identified in this reply.
Therefore, the exception laid down in Article 4(2) first indent of Regulation (EC) No 1049/2001
applies to certain parts of the requested documents, which have been redacted.
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a confirmatory
application requesting the Director of REA to review this position.
Such a confirmatory application should be addressed within 15 working days upon receipt of this
letter to Mr Marc TACHELET, Director of REA, at the following address:
Research Executive Agency
Covent Garden building
COV2 – 08/52
Place Charles Rogier, 16
1210 Brussels
Or by e-mail
to xxxx.xxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
Barbara KAMPIS
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Enclosures:
- Annex 1 - List of documents related to the request and legal grounds regarding disclosure
- Deliverable D3.1 Legal and ethical state of the art
- Deliverable D4.2 Use cases and scenarios
- Deliverable D5.4 FOLDOUT System Architecture Design Report
- Deliverable D6.3 Physical communication network hardware/software with documentation for
ground-based solutions
- Minutes Kick Off Meeting 03.09.2018
- Minutes Kick Off Meeting 05.09.2018
- FOLDOUT OBJ1 status and plan
- FOLDOUT OBJ2 status and plan
- FOLDOUT OBJ6 Improve situational awareness through fusion Status and plans
- FOLDOUT OBJ7 status and plan
- FOLDOUT OBJ8 Demonstrate effectiveness of FOLDOUT concept in realistic operational
scenarios
- FOLDOUT OBJ9 status and plan
- FOLDOUT OBJ11 Ensure that the FOLDOUT developments are in line with EU Legal-Ethical-
Privacy rules
- FOLDOUT_PartnerPresentation_Practicioners_KEMEA
Electronically signed on 12/10/2020 11:03 (UTC+02) in accordance with article 11 of Commission Decision C(2020) 4482
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