Ref. Ares(2021)49539 - 04/01/2021
Fiche 5 Access to documents from third parties
- Updated -
All documents in the Commission's possession - including documents from third parties - fall within the scope of
Regulation 1049/2001. If access to them is requested, the possibility of granting full or partial access needs to
Unless it is clear that the document(s) shall or shall not be disclosed, the third-party originator must be
consulted regarding the possibility to grant partial or full access to the document(s) requested.
If the originator of the document objects to the disclosure on the basis of the exceptions provided for in Article
4 of Regulation 1049/2001, the DG/service should confirm the refusal and not overrule the third party at the
as explained below.
The third-party originator
is to be understood as the entity or individual who submitted the documents to the
Current administrative practice:
How to assess documents originating from third parties under Regulation 1049/2001?
The course of action to follow depends on the content of the documents. No consultation is necessary in the following
If access to the content of the documents originating from third parties manifestly does not affect one of the
protected interests under the exceptions provided for in Article 4 of Regulation 1049/2001. Correspondence
(letters, e-mails) from third parties can normally be made public, unless specific commercially sensitive
elements, personal data of non-senior staff or other sensitive elements warrant protection under one of the
exceptions of Article 4, and without prejudice to the need to consult in case of doubt;
If the documents, or parts thereof, are clearly covered by one or several exceptions (such as commercially
sensitive data appearing in the documents, or certain types of personal data1, which are redacted by default2);
If the third-party documents are covered by a general presumption of non-disclosure, recognised by the case-
law of the ECJ (for more information see the case-law table available on the access-to-documents webpages on My Intracomm
In all other cases, the third-party originator must be consulted (Article 4 of the Regulation; Article 5 of the internal rules).
Consultations of third parties should enable the latter to explain their position with reference to the exceptions set out
in Article 4 of Regulation 1049/2001.
The opinion of the third-party originator
on the possible sensitivity of the documents in light of the exceptions of Article
4 of Regulation 1049/2001 also covers those annexes or data that had been authored and transmitted to it by yet
another third party (the ‘third-party author
’). In the latter case, it might decide to consult the third-party author of those
documents or data before submitting its position to the Commission. It is not for the Commission services to consult
directly the ‘third party author’.
When dealing with the request at the initial level, the DGs/services should not grant access to the documents
concerned, or parts thereof, in cases where the originator objects
to disclosure and justifies the objection with
reference to the exceptions provided for in Regulation 1049/2001. Where no such justification is given, the service
concerned should insist that the third-party author provides one.
In the initial reply, the full or partial refusal to give access must be justified by the application of one or several
exceptions provided for by paragraphs 1 to 23 of Article 4 of Regulation 1049/2001. Reference can be made both to the
1 In particular, names of non-senior staff, biometric data such as signatures, and contact details of individuals.
2 Please see our separate guidance fiche the personal data of third parties.
exceptions invoked by the third party and/or to other exceptions if these are considered applicable. The fact that a third
party objected is not in itself
an exception that can be invoked, as the refusal should always be argued on the basis of
exceptions laid down in Article 4 of Regulation 1049/2001.
The decision whether the document is disclosed remains with the Commission. The Commission's current administrative
practice is that the need for overruling of the originator’s explicit objections to disclosure is assessed at the
by the SG.
In case of Member State opposition, a reference should be made both to Articles 4(4) and 4(5) and to the prima facie
assessment4 of the exceptions invoked by the Member State.
If the third party does not respond5, the Commission must still assess the document to determine whether it falls under
any exceptions, while taking into account the third party's interests.
How to assess Commission documents reproducing the position of a third party?
Art. 4(4) concerns consultation of third parties regarding disclosure of documents originating from them. In principle, we
do not consult third parties on disclosure of the Commission's own documents. However, insofar as Commission
documents quote or reflect the content of third-party documents, the general Commission's administrative practice is to
consult the third parties on the possible disclosure of their relevant parts. The decision whether or not to consult a third
party on the relevant section of the Commission documents is taken on a case-by-case basis, depending on the
sensitivity of the content and the possible harm in disclosure, in light of the interests protected under Regulation
For example, the Commission does not necessarily have to consult third parties on the possible disclosure of minutes of
meetings held with third parties (drafted by Commission services unilaterally and for internal use), unless the views of
the third parties reflected therein are particularly sensitive.
In case of documents reflecting Member States' positions, it is however recommended to consult the respective
Member States, in accordance with the principle of loyal cooperation. If the positions were expressed in the framework
of meetings of the Council or its preparatory bodies, it is the Council, rather than the Member States, to whom the
consultation should be addressed.
Court of Justice, 18 December 2007, case C-64/05, Sweden v Commission
Court of first Instance, 30 January 2008, case T-380/04, Terezakis v Commission
General Court, 13 September 2013, case T-380/08, Netherlands v Commission
General Court, 25 September 2014, case T-669/11, Spirlea v Commission
General Court, 21 October 2010, case T-439/08, Agapiou Joséphidès v Commission and EACEA
General Court, 3 May 2018, case T-653/16, Malta v Commission
Standard letters for consultation of third parties, as well as examples of confirmatory decisions and the
summary of the case-law are available on the Commission's access-to-documents webpages on My
The full text of judgments of the EU Courts can be consulted on the website of the ECJ: www.curia.eu
3 In case the third party is a Member State, the latter can also invoke Article 4(3). Please see in this respect Case C-64/05,
Sweden v Commission
, paragraph 76.
4 The Commission checks whether the explanations put forward are manifestly wrong.
5 And the Commission service concerned clearly indicated that, in the absence of a reply within the set deadline, it would decide.