Ref. Ares(2020)7043344 - 24/11/2020
conflict of interest in relation to the EU budget,
and provide me that
record by Friday 12 July 2019 given that it results from the attached letter that you
] have not prepared that record so far despite your legal
obligation to do so’.
You further explain that the failure to provide minutes ‘[…] makes it impossible for the
elected members of Parliament of Member States, such as [yourself], to check whether (i)
or
are not violating Article 61 of Regulation
1046/2018/EC, and (ii) to exercise democratic control over the executive institutions of the
European Union (such as
and executive members of the
Czech Government (such as
In this context, the European Commission has carried out a renewed, thorough search for
the documents requested.
Following this renewed search, I confirm that the European Commission does not hold any
documents that would correspond to the description given in your application.
As specified in Article 2(3) of Regulation (EC) No 1049/2001, the right of access as defined
in that regulation applies only to existing documents in the possession of the institution. I
would like to refer in this respect to the judgment of the Court of Justice in Case C-127/13 P
(
Strack v Commission), according to which ‘[n]either Article 11 of Regulation 1049/2001
nor the obligation of assistance in Article 6(2) thereof, can oblige an institution to create a
document for which it has been asked to grant access but which does not exist’.3
The above-mentioned conclusion has been confirmed in Case C-491/15 P (
Typke v
Commission), where the Court of Justice held that ‘the right of access to documents of the
institutions applies only to existing documents in the possession of the institution concerned
and […] Regulation No 1049/2001 may not be relied upon to oblige an institution to create
a document which does not exist. It follows that, […], an application for access that would
require the Commission to create a new document, even if that document were based on
information already appearing in existing documents held by it, falls outside the framework
of Regulation No 1049/2001’.4 (emphasis added).
Furthermore, the General Court held in Case T-468/16 (
Verein Deutsche Sprache v
Commission) that there exists a presumption of lawfulness attached to the declaration by the
institution asserting that documents do not exist.5 This presumption continues to apply,
unless the applicant can rebut it by relevant and consistent evidence.6 The Court of Justice,
ruling on an appeal in Case C-440/18 P, has recently confirmed these conclusions.7
3 Judgment of the Court of Justice of 2 October 2014,
Strack v Commission, C-127/13 P, EU:C:2014:2250,
paragraph 46.
4 Judgment of the Court of Justice of 11 January 2017,
Typke v Commission, C-491/15 P, EU:C:2017:5,
paragraph 31.
5 Judgment of the General Court of 23 April 2018,
Verein Deutsche Sprache v Commission, T-468/16,
EU:T:2018:207, paragraphs 35-36.
6
Ibid.
7 Order of the Court of Justice of 30 January 2019,
Verein Deutsche Sprache v Commission, C-440/18P,
EU:T:2018:207, paragraph 14.
2