Ref. Ares(2020)7043344 - 24/11/2020
EUROPEAN COMMISSION
Brussels,31.7.2019
C(2019) 5892 final
1050 Brussels
Belgium
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 2019/940
Dear
I refer to your letter of 8 May 2019, registered on 10 May 2019, in which you submit 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').
1.
SCOPE OF YOUR REQUEST
In your initial application of 12 February 2019, addressed to the Directorate-General for
Environment, you requested access to ‘all documents, including any notes by other
services of the Commission, including but not limited to the Legal Service, held by the
Commission related to the Draft Commission Implementing Decision on the compliance
check of a registration for dimethyl ether CAS number 115-10-6, EC number 204-065-8,
referred by the European Chemicals Agency to the Commission pursuant to Article 51(7)
of the REACH Regulation (EC) No 1907/2006 (DME) presented to the 14-15 February
2018 REACH Committee meeting under Agenda point 4.’
1
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
The European Commission has identified the following documents as falling under the
scope of your request:
Letter of Referral to the European Commission of European Chemicals
Agency’s draft decision on a compliance check as part of registration
dossier
of
a
substance
registered
under
REACH,
reference
Ares(2019)3683312 (hereafter ‘document 1’), which includes the
following annexes:
o
Draft decision as referred to the 53rd round of the Member States
Committee (MSC-53) (hereafter ‘document 2’);
o
Draft decision as submitted to 53rd meeting of the Member States
Committee (MSC-53) (hereafter ‘document 3’);
o
Voting report on dossier evaluation in the 53rd meeting of the
Member States Committee (MSC-53) of 25-26 April 2017
(hereafter ‘document 4’);
o
Extract from the Minutes of the 53rd meeting of the Member States
Committee
(MSC-53)
of
25-26
April
2017
(hereafter
‘document 5’);
o
Justification for diverging views (hereafter ‘document 6’);
o
European Chemicals Agency’s response to comments on the draft
decision (hereafter ‘document 7’);
Updated version of European Chemicals Agency’s response to comments
on the draft decision with an annex, reference Ares(2019)3511009
(hereafter ‘document 8’);
Follow-up from Member States after the Extended One-Generation
Reproductive Toxicity Study (EOGRTS) Expert workshop of 18 June
2018, reference Ares(2019)3512642 (hereafter ‘document 9’);
Comments from Member States on the Extended One-Generation
Reproductive Toxicity Study (EOGRTS) design for dimethyl ether at the
REACH Committee Meeting of 19-20 March 2018, reference
Ares(2019)3512821 (hereafter ‘document 10’);
Comments on the discussion on Extended One-Generation Reproductive
Toxicity Study (EOGRTS) design for dimethyl ether of 10 October 2018
in the REACH Committee Meeting of 28 September 2018, reference
Ares(2019)3513066 (hereafter ‘document 11’);
Letter from Steptoe regarding dimethyl ether of 8 January 2019, reference
Ares(2019)248530, (hereafter ‘document 12’);
2
Reply to the letter from Steptoe regarding dimethyl ether of 8 January
2019, reference Ares(2019)329738, (hereafter ‘document 13’);
Discussion paper on Extended One-Generation Reproductive Toxicity
Study (EOGRTS) design for dimethyl ether in the REACH Committee
Meeting of 27-28 September 2018, reference Ares(2019)3513278
(hereafter ‘document 14’);
Draft Commission Implementing Decision on the compliance check of a
registration of dimethyl ether, version of 14 February 2019, reference
Ares(2019)3513404 (hereafter ‘document 15’);
Discussion on elements of a forthcoming draft Commission Implementing
Decision on the compliance check of the registration of dimethyl ether in
the REACH Committee Meeting of 19-20 March 2018, reference
Ares(2019)3513523 (hereafter ‘document 16’);
Comments of the Legal Service on the Draft Commission Implementing
Decision on the compliance check of a registration of dimethyl ether
submitted to the inter-service consultation ISC/2018/08865, (hereafter
‘document 17’);
Section of the Minutes of the meeting of the REACH committee of 19-20
March 2018, reference Ares(2019)3513645 (hereafter ‘document 18’);
Section of the Minutes of the meeting of the REACH committee of 27-28
September 2018, reference Ares(2019)3513706 (hereafter ‘document
19’)3;
Commission response to Member State comments on the Discussion
document for substance dimethyl ether, reference Ares(2019)3513755
(hereafter ‘document 20’);
Email exchange between the European Chemicals Agency and the
Directorate-General for Environment related, among others, to dimethyl
ether (hereafter ‘document 21’);
Presentation by the European Chemicals Agency at the Expert meeting on
the application of the Extended One-Generation Reproductive Toxicity
Study (EOGRTS) protocol under REACH, point 3.2a, reference
Ares(2019)3513866 (hereafter ‘document 22’);
3 This document was identified by the Directorate-General for Environment by mistake and is outside
the scope of this request as the document was adopted on 7-8 March 2019.
3
Slide 7 of the presentation by the European Chemicals Agency at the
Expert meeting on the application of the Extended One-Generation
Reproductive Toxicity Study (EOGRTS) protocol under REACH, point
4.1, reference Ares(2019)3513866 (hereafter ‘document 23’);
Presentation by a Member State at the Expert meeting on the application
of the Extended One-Generation Reproductive Toxicity Study (EOGRTS)
protocol under REACH, reference Ares(2019)3513919 (hereafter
‘document 24’).
In its initial reply of 15 April 2019, the Directorate-General for Environment granted:
- full access to documents 5 and 6;
- wide partial access to document 1, subject only to the redactions of personal data
based on the exception of Article 4(1)(b) (protection of privacy and the integrity
of the individual);
- refused access to documents 2-4, 7-11, 14-24 based on the exceptions of Article
4(1)(b) (protection of privacy and the integrity of the individual), Article 4(2) first
indent (protection of commercial interests of natural or legal persons) and Article
4(3), first subparagraph (protection of the ongoing decision-making process) of
Regulation (EC) No 1049/2001.
The Directorate-General for Environment considered that, since you were in possession
of document 12 and 13, as they represented previous exchanges between you and the
Directorate-General for Environment, these documents fell outside the scope of your
request.
In your confirmatory application, you request a review of this position. You underpin
your request with detailed arguments, which I will address in the corresponding sections
below.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation (EC) No 1049/2001, the Secretariat-General conducts a fresh review of the
reply given by the Directorate-General concerned at the initial stage.
As part of this review, the European Commission has identified the following documents,
registered under reference Ares(2018)5959009, which fall under the scope of your
request:
Note of 21 November 2018, launching the inter-service consultation on a draft
Commission Implementing Decision on the compliance check for the substance
dimethyl ether pursuant to Article 41(1) of Regulation (EC) No 1907/2006 of the
European Parliament and of the Council of 18 December 2006 concerning the
Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH),
(hereafter ‘document 25’);
4
Note to the Cabinet of Commissioner Bieńkowska requesting the launch of an
inter-service consultation on a draft Commission Implementing Decision on the
compliance check under the REACH Regulation for the substance ‘dimethyl
ether’ (hereafter ‘document 26’);
Note to the Cabinet of Commissioner Vella requesting the launch of an inter-
service consultation on a draft Commission Implementing Decision on the
compliance check under the REACH Regulation for the substance ‘dimethyl
ether’ (hereafter ‘document 27’);
Excerpt of the result of the inter-service consultation ISC/2018/08865 (hereafter
‘document 28’);
Draft Commission Implementing Decision on the compliance check of a
registration of dimethyl ether, version of 21 November 2018 submitted to the
inter-service consultation ISC/2018/08865 (hereafter ‘document 29’).
Since documents 2, 3, 4, 7, 8, 22 and 23 originate from the European Chemicals Agency,
the Secretariat-General consulted it in accordance with Article 4(4) of Regulation (EC)
No 1049/2001 with a view of assessing whether an exception in paragraph 1 or 2 of
Article 4 of Regulation (EC) No 1049/2001 could be applicable.
Following this review and taking into account the results of the consultation, I can inform
you that:
– partial access is granted to documents 25, 26 and 27.
As regards the remaining documents and the withheld parts of documents 25-27, I regret
to inform you that I have to confirm the initial decision of Directorate-General for
Environment to refuse access, based on the exceptions of Article 4(1)(b) (protection of
the privacy and integrity of the individual), Article 4(2), first indent (protection of
commercial interests of natural or legal persons), Article 4(2), second indent (protection
of legal advice) and Article 4(3), first subparagraph (protection of the decision-making
process) of Regulation (EC) No 1049/2001, for the reasons set out below.
2.1. Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation (EC) No 1049/2001 provides that ‘[t]he institutions shall
refuse access to a document where 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’.
5
In its judgment in Case C-28/08 P
(Bavarian Lager)4, the Court of Justice ruled that
when a request is made for access to documents containing personal data, Regulation
(EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000
on the protection of individuals with regard to the processing of personal data by the
Community institutions and bodies and on the free movement of such data5
(hereafter ‘Regulation (EC) No 45/2001’) becomes fully applicable.
Please note that, as from 11 December 2018, Regulation (EC) No 45/2001 has been
repealed by 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/EC6 (hereafter ‘Regulation (EU) 2018/1725’).
However, the case law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) 2018/1725.
In the above-mentioned judgment, the Court stated that Article 4(1)(b) of Regulation
(EC) No 1049/2001 ‘requires that any undermining of privacy and the integrity of the
individual must always be examined and assessed in conformity with the legislation of
the Union concerning the protection of personal data, and in particular with […] [the
Data Protection] Regulation’.7
Article 3(1) of Regulation (EU) 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
As the Court of Justice confirmed in Case C-465/00 (
Rechnungshof), ‘there is no reason
of principle to justify excluding activities of a professional […] nature from the notion of
private life’.8
Documents 1, 14, 16, 17, 21, 25, 26, 27 and 28 contain personal data such as the names
and initials of persons who do not form part of the senior management of the European
Commission. Document 4 contains the names and respective countries of the attendees of
the Member State Committee of the European Chemicals Agency.
The names9 of the persons concerned as well as other data from which their identity can
be deduced undoubtedly constitute personal data in the meaning of Article 3(1) of
Regulation (EU) 2018/1725.
4 Judgment of the Court of Justice of 29 June 2010,
European Commission v The Bavarian Lager Co.
Ltd (hereafter referred to as
‘European Commission v The Bavarian Lager judgment’) C-28/08 P,
EU:C:2010:378, paragraph 59.
5 Official Journal L 8 of 12.1.2001, page 1.
6 Official Journal L 205 of 21.11.2018, p. 39.
7 Judgment in
European Commission v The Bavarian Lager,
cited
above, paragraph 59.
8 Judgment of the Court of Justice of 20 May 2003,
Rechnungshof and Others v Österreichischer
Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
9 Judgment in
European Commission v The Bavarian Lager, cited above, paragraph 68.
6
Pursuant to Article 9(1)(b) of Regulation (EU) 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 (EU) 2018/1725, can the
transmission of personal data occur.
In Case C-615/13 P
(
ClientEarth), the Court of Justice ruled that the institution does not
have to examine by itself the existence of a need for transferring personal data.10 This is
also clear from Article 9(1)(b) of Regulation (EU) 2018/1725, which requires that the
necessity to have the personal data transmitted must be established by the recipient.
According to Article 9(1)(b) of Regulation (EU) 2018/1725, the European Commission
has to examine the further conditions for the lawful processing of personal data only if
the first condition is fulfilled, namely if the recipient establishes that it is necessary to
have the data transmitted for a specific purpose in the public interest. It is only in this
case that the European Commission has to examine whether there is a reason to assume
that the data subject’s legitimate interests might be prejudiced and, in the affirmative,
establish the proportionality of the transmission of the personal data for that specific
purpose after having demonstrably weighed the various competing interests.
In your confirmatory application, you do not put forward any arguments to establish the
necessity to have the data transmitted for a specific purpose in the public interest.
Therefore, the European Commission does not have to examine whether there is a reason
to assume that the data subjects’ legitimate interests might be prejudiced.
Notwithstanding the above, there are reasons to assume that the legitimate interests of the
data subjects concerned would be prejudiced by the disclosure of the personal data
reflected in the documents, as there is a real and non-hypothetical risk that such public
disclosure would harm their privacy and subject them to unsolicited external contacts.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data, 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 the disclosure of the personal data concerned.
10 Judgment of the Court of Justice of 16 July 2015,
ClientEarth v European Food Safety Agency, C-
615/13 P, EU:C:2015:489, paragraph 47.
7
2.2. Protection of commercial interests of natural or legal persons
Article 4(2) first indent of Regulation (EC) No 1049/2001 provides that ‘[t]he institutions
shall refuse access to a document where disclosure would undermine the protection of
commercial interests of natural or legal persons, including intellectual property’.
Documents 2, 3, 7, 8, 15, 17, 21, 23, 26 and 29 contain the names and addresses of the
registrants, other than natural persons, as well as the registration and submission
numbers, which are used as exclusive identifiers for communication between the
European Chemicals Agency and the registrants. In addition, they also contain references
to the design of the study referred to in the presentation that are still under discussion.
Disclosure of this information at this stage could undermine the commercial interests of
the registrants since it would reveal the type of concern that lead to the decision to ask for
a compliance check for this substance. Moreover, some documents contain references to
unpublished studies performed by certain laboratories, which would show that a certain
registrant has performed a certain type of study, thereby showing their activities on the
market.
Its public disclosure, through the release of the above-mentioned withheld documents
under Regulation (EC) No 1049/2001, would clearly undermine the commercial interests
of natural or legal persons, including of the addresses of the decision, since it would
reveal the registrants that are affected by the compliance check in question. The data was
submitted by the registrants under the legitimate expectation that it would not be
publically released.
Consequently, there is a real and non-hypothetical risk that public access to the above-
mentioned information would undermine the commercial interests of the economic
operators in question. I conclude, therefore, that access to the relevant parts of documents
2, 3, 7, 8, 15, 17, 21, 23, 26 and 29 must be denied based on the exception laid down in
the first indent of Article 4(2) of Regulation (EC) No 1049/2001.
2.1. Protection of Court proceedings and legal advice
Article 4(2), second indent of Regulation 1049/2001 provides that ʻ[t]he institutions shall
refuse access to a document where disclosure would undermine the protection of: […]
court proceedings and legal advice’.
In its judgement in Case T-84/03, the Court of First Instance11 underlined that the
exception provided for in Article 4(2), second indent, protects two distinct interests: court
proceedings and legal advice12. In the case at hand, parts of document 17 contain legal
advice which needs to be protected.
11 Currently: the General Court.
12 Judgment of the Court of First Instance of 23 November 2004,
Turco v Council, T-84/03,
EU:T:2004:339, paragraph 65.
8
It needs to be recalled that the concept of
legal advice, as well as the applicability of the
exception protecting it, was interpreted by the case law of the EU Court. Indeed, in its
judgment in
Herbert Smith Freehills v Commission, the General Court took the position
that legal advice is ‘advice relating to a legal issue, regardless of the way in which that
advice is given’13.
In the above-mentioned judgment, the General Court also explicitly underlined that ‘it is
irrelevant, for the purposes of applying the exception relating to the protection of legal
advice, whether the document containing that advice was provided at an early, late or
final stage of the decision-making process’14.
Furthermore, according to General Court's
reasoning ‘there is nothing in the wording of the second indent of Article 4(2) of
Regulation (EC) No 1049/2001 to support the conclusion that that provision concerns
only advice provided or received internally by an institution’15.
Document 17 contains legal opinions and legal advice from the European Commission’s
Legal Service on the draft Commission Implementing decision on the compliance check
for a registration for dimethyl ether following an inter-service consultation.
Disclosure of these parts of the requested documents would undermine the protection of
legal advice provided for under article 4(2), second indent of Regulation (EC) No
1049/2001, as it would put in the public domain internal opinions on sensitive issues
drafted under the responsibility of the Legal Service and intended for internal use as part
of deliberations and preliminary consultations.
Providing access to these parts of the Legal Service's opinions, while the decision-
making process is still ongoing, would disclose legal views on controversial questions,
before the Commission had the possibility to decide on the matters under discussion. The
protection of legal advice aims to protect an institution's interest in seeking legal advice
and receiving frank, objective and comprehensive advice16. There is indeed a non-
hypothetical risk that public disclosure of the withheld legal opinions and advice in
document 17 would undermine the interest of the European Commission in seeking and
receiving frank, objective and comprehensive advice on controversial issues.
In the light of the above, access to the relevant undisclosed parts of document 17 must be
denied on the basis of the exception laid down in the second indent of Article 4(2) of
Regulation (EC) No 1049/2001.
2.2. Protection of the ongoing decision-making process
Article 4(3), first subparagraph of Regulation (EC) No 1049/2001 provides that ‘[a]ccess
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’.
13 Judgment of the Court of First Instance of 15 September 2016,
Herbert Smith Freehills v Commission,
T-755/14, EU:T:2016:482, paragraph 47.
14 Judgment in
Herbert Smith Freehills v Commission, cited above, paragraph 47
.
15 Judgment in
Herbert Smith Freehills v Commission, cited above, paragraph 48.
16 Judgment of the Court of Justice of 1 July 2008,
Kingdom of Sweden and Maurizio Turco v
Council of
the European Union, Joined Cases C-39/05 P and C-52/05 P, EU:C:2008:374, paragraph 42.
9
In your confirmatory application, you argue that the European Commission did not
specifically and actually explain how disclosure of the above-mentioned documents
would jeopardise the ongoing decision-making process and that this exception must be
interpreted and applied strictly. You are of the opinion that the opinion of the Member
States in this process should not be censored. You support your argument by invoking
the
Council v Access Info Europe judgment.
17
Please note that the above-mentioned judgment refers to the proposal for a regulation,
which is an act of general application. However, the Commission Implementing Decision
on the compliance check for registration of dimethyl ether are acts with specific
addressees. As the underlying facts in this case are not identical to the ones of this
judgment, its findings cannot apply in this case. Indeed, as the decision to be taken by the
European Commission has concrete addressees on whom it may impose an obligation to
provide additional information; the risk that the ongoing decision-making process can be
seriously undermined by external pressure is even more realistically foreseeable and non-
hypothetical. Yet, it is necessary that European Commission services and members of the
REACH Committee are able to exchange views and discuss the draft decision free from
such pressure, in order to decide in full knowledge of all expressed views.
Concerning your reference to case GESTDEM 2019/942 where the European
Commission disclosed more documents, please note that the European Commission
analyses each case and each document based on its merits taking into account the factual
and legal circumstances applicable at the time a request for access to documents is made.
In the case you cite, a Commission decision had already been adopted, thus the exception
in Article 4(3), first subparagraph of Regulation (EC) No 1049/2001 did not apply.
Documents 2, 3, 4, 7 and 8 concern the European Chemicals Agency’s draft decision
that had been referred to the Commission due to lack of unanimity in the Member State
Committee.
Document 4 contains the detailed voting by country in the Member State Committee of
25-26 April 2017. Since the lack of unanimity within the Member States Committee
triggered the discussions at Commission level for the preparation of a Commission
decision, public disclosure of these documents, while the decision is still pending,
represents a concrete, specific and non-hypothetical risk of external pressure from third
parties on the actors involved in the Commission decision-making process.
Documents 9-11 and 14-27 and 29 contain preliminary views, initial discussions and
consultations between the Commission, Member States and the European Chemicals
Agency in view of the preparation of the draft Commission Implementing Decision on
the compliance check for dimethyl ether and various versions of the draft decision itself.
This decision is to be adopted in accordance with the examination procedure, which
requires, first, an opinion in the REACH Committee. The draft of this decision has not
yet been submitted to a vote in the committee at this time.
17
Judgment of the Court of Justice of 17 October 2013,
Council v Access Info Europe, C-280/11 P,
EU:C:2013:671, paragraph 30.
10
More specifically, documents 9, 22, 23 and 24 relate to an expert meeting organised by
the European Commission, considering the lack of unanimity within the Member State
Committee and in view of the preparation of several decisions referred to the
Commission, including on dimethyl ether, to discuss with competent authorities of
Member States and the European Chemicals Agency principle elements of the
reproductive toxicity study (EOGRTS) design and some compliance check decisions
referred to the Commission including that for dimethyl ether. These documents also
include individual views provided by Member States. Disclosure of these preliminary
discussions and views represent, similarly, a concrete, specific and non-hypothetical risk
of pressure from third parties on the actors involved in the Commission decision-making
process.
Documents 10, 11, 14, 16, 18 and 20 concern or include individual opinions of Member
States expressed within the REACH Committee. Documents 10, 11 and 20 contain
individual positions of Member States related to the discussions for the preparation of a
draft Commission Implementing Decision on the compliance check for dimethyl ether.
Documents 14 and 16 represent discussion papers submitted to the REACH committee
by the European Commission related to the design of the Extended One-Generation
Reproductive Toxicity Study (EOGRTS) for dimethyl ether. The documents present
preliminary views by the European Commission at that time for discussion within that
committee and their public disclosure represents a concrete, specific and non-
hypothetical risk of pressure from third parties on the actors involved in the decision
making process.
Document 21 contains preliminary consultations and informal opinions by European
Commission staff expressing remarks, including on internal working methods, as part of
preliminary deliberations and consultations between the European Commission and the
European Chemicals Agency in the framework of a decision for compliance check as part
of a registration dossier for a chemical substance. Furthermore, parts of this document do
not only concern the concrete case, but also go beyond to other general matters.
Documents 22 and 23 are presentations made by the European Chemicals Agency in the
expert workshop dedicated to the design of the reproductive toxicity study. Please note
that in document 23 only one slide is related to dimethyl ether and thus in the scope of
this request.
Document 24 is a presentation made by three of the Member States participating in the
expert workshop dedicated to the design of the reproductive toxicity study. In this
presentation, the Member States in question present their individual views on the
approach to the design of the study.
Documents 15 and 29 represent various versions of the draft Commission Implementing
Decision on the compliance check of a registration of dimethyl ether. They present the
Commission position on the issue.
11
Documents 25-28 contain a brief description of the position of the European
Commission’s lead services on this case and its arguments that led to the version of the
Commission Implementing Decision submitted to inter-service consultation, as well as
the result of the consultation. Disclosure of that position before the adoption of the
Commission Implementing Decision would jeopardise the ongoing decision-making
process by inducing external pressure, mainly from the registrants, since the decision is
affecting them directly.
The documents requested above cannot be disclosed, because their disclosure would
seriously undermine the ongoing decision-making process is various ways:
Firstly, as regards documents 10, 11, 18 and 20, which reflect individual positions of the
Member States in the REACH Committee, the rules applicable to comitology procedures
preserve the confidentiality of the discussions within the committee, including individual
positions of the Member States. The Standard Rules of Procedure adopted by the
European Commission pursuant to Article 9 of Regulation (EU) No 182/2011 (‘the
Comitology Regulation’) explicitly exclude the positions of individual Member States
from public access. Indeed, Articles 10(2) and 13(2) of the Standard Rules of Procedure
provide, respectively, that summary records of the meetings shall not mention the
position of individual Member States in the committee's discussions and that those
discussions shall remain confidential. In addition, Article 10 of the Comitology
Regulation limits the scope of the documents to be made publicly available via the
comitology register. The documents reflecting the individual positions of the Member
States are not among the documents to be disclosed.
It follows that the European Commission cannot grant public access under Regulation
(EC) No 1049/2001 to documents containing references to the individual Member States
that expressed opinions in the framework of committee meetings, as this would result in
the above-mentioned confidentiality requirements being deprived of their meaningful
effect. Such a public disclosure would undoubtedly affect mutual trust between the
European Commission and the Member States and would therefore be at odds with the
principle of sincere cooperation.
This is a concrete and realistic risk, as the public disclosure of the individual positions of
Member States, against the explicit rules on confidentiality, would certainly undermine
the trust between the Member States and the European Commission and could make the
Member State representative a specific target to pressure and lobbying. This would
seriously undermine the decision-making process of the European Commission, as it
would jeopardise the effectiveness of its work.
Regarding document 21, disclosure of individual remarks of Commission staff, would
deter European Commission staff from making such comments independently and
without fear of external pressure and exposure. If European Commission staff cannot
express their opinions (including critical ones) concerning their institution's cooperation
with an EU agency in a frank and open way and without being influenced by the prospect
of public disclosure, there will be a real risk that issues requiring improvements might
12
not be identified and subsequently such improvements not be implemented. Such a
situation would clearly be to the detriment of the smooth running of the European
Commission's own decision-making process, including in the context of the registration
of chemical substances.
As regards the remaining documents covered by the exception based on Article 4(3), first
subparagraph of Regulation (EC) No 1049/2001 (protection of the decision-making
process), their public disclosure at this stage would seriously undermine the
Commission’s ongoing decision-making process, as they concern controversial issues
which are still under discussion and would lead to targeted external pressure, in particular
from the addresses of these decisions. It is indeed in the public interest, that the European
Commission is allowed to conduct its on-going assessment in serenity and free from
external pressure, which highly contributes to the quality of its final decision.
Therefore, I conclude that the refusal of access to the undisclosed parts of documents 2-4,
7-11 and 14-29 is justified based on Article 4(3), first subparagraph of Regulation (EC)
No 1049/2001.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2), first indent and 4(3), first subparagraph of
Regulation (EC) No 1049/2001 must be waived if there is an overriding public interest in
disclosure. Such an interest must, firstly, be public and, secondly, outweigh the harm
caused by disclosure.
In your confirmatory application, you do not put forward any reasoning pointing to an
overriding public interest in disclosing the documents requested.
Nor have I been able to identify any public interest capable of overriding the public and
private interests protected by Article 4(2), first indent and 4(3), first subparagraph of
Regulation (EC) No 1049/2001.
Please note also that Article 4(1)(b) 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.
The fact that the Commission has made many documents relating to this issue publicly
available via a dedicated webpage
(http://ec.europa.eu/transparency/regcomitology/index.cfm?do=search.dossierdetail&Dos
_ID=17240&dos_year=2019&dc_id=75 ) only reinforces this conclusion.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting (further) partial access to the documents requested.
Partial access is granted to documents 25, 26 and 27 for the reasons explained above.
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