Ref. Ares(2021)352218 - 15/01/2021
EUROPEAN COMMISSION
Brussels, 5.12.2019
C(2019) 8866 final
10600 Plasencia (Cáceres)
Spain
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 2019/4666
Dear
,
I refer to your e-mail of 10 October 2019, registered on 11 October 2019, in which you
submitted 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 August 2019, addressed to the Directorate-General for
Employment, Social Affairs and Inclusion, you requested access to, I quote:
‘[…] the following file: CHAP 2014(0148) (If the said file contains more than one
complaint, the undersigned only requests access to one that can be considered as a
‘model’ complaint); in addition to all correspondence of the Commission with respect to
it [with the personal data anonymised]’.
The European Commission has identified, as falling within the scope of your request, the
following documents that are part of CHAP(2014)00148:
1
OJ L 345, 29.12.2001, p. 94.
2
OJ L 145, 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Letter sent by a complainant to the European Commission, 27 December
2013, reference Ares(2019)5748925 (hereafter ‘document 1’);
letter from the European Commission, 13 May 2014, reference
Ares(2019)6281321 (hereafter ‘document 2’);
letter sent by a complainant to the European Commission, 7 May 2014,
reference Ares(2019)5748925 (hereafter ‘document 3’);
letter from the European Commission, 15 February 2015, reference
Ares(2019)6281321 (hereafter ‘document 4’).
In its initial reply of 10 October 2019, the Directorate-General for Employment, Social
Affairs and Inclusion granted partial access to documents 2 and 4 pursuant to Article
4(2), third indent (protection of the purpose of the inspections, investigations and audits)
of Regulation (EC) No 1049/2001. It refused to grant access to documents 1 and 3 as it
did not obtain a reply to its consultation with the author(s) of the documents and after
concluding that disclosure could undermine judicial proceedings and/or the commercial
interests of the complainant(s). It redacted the personal data as falling outside the scope
of your request.
In your confirmatory application, you request a review of this position and you put
forward a series of arguments in support of your request for additional documents
pertaining to the file, notably as regards documents originating from the complainant(s).
In particular, you argue that the European Commission erred in refusing access to ‘the
remaining documents, especially [the documents submitted by the complainant]’, based
on ‘hypothetical’ arguments, as the complainant did not oppose the disclosure of the
documents he/she submitted to the European Commission. Moreover, you consider that
the European Commission ‘has no evidence that [the possible judicial proceedings] exist,
nor has the complainant alleged anything in that regard to prevent [your access to the
documents]’. You did not contest the assessment of the Directorate-General for
Employment, Social Affairs and Inclusion regarding documents 2 and 4.
Please be informed that the European Commission does not hold documents pertaining to
CHAP(2014)00148 other than those which were identified at the initial stage as matching
the criteria under your request, with the exception of the English version of document 4,
which is already in your possession.
Therefore, the scope of this confirmatory decision is circumscribed to the review of
documents that were submitted by the complainant(s) and which are included in the file
of CHAP(2014)00148.
2
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.
Your request relates to complaints received by the European Commission in 2013
regarding the employment status of certain judicial officers in Spain. Given the large
number of complaints received, the European Commission processed them together and
provided a single reply addressing the arguments invoked by the complainants.
Therefore, the identity of the authors of the documents identified under your request may
not necessarily be the same.
In this context, I would like to inform you that the third party author of document 1 has
agreed with its disclosure, subject to the redaction of personal data. Moreover, on the
basis of Article 4(4) of Regulation (EC) No 1049/2001, the Secretariat-General of the
European Commission undertook consultations with the third party author of document 3
with a view to assessing whether an exception provided for under Article 4 of the
Regulation could be applicable to the document in question. The Secretariat-General did
not obtain a reply to this consultation within the set deadline. However, it considers that,
with the exception of personal data, disclosure of content of this document would not
undermine any of the interests protected by the exceptions laid down in Article 4 of
Regulation (EC) No 1049/2001.
Following the confirmatory review, I can inform you that full access is granted to
document 3 and the version of document 1 which is included in the dossier under
reference CHAP(2014)00148. The personal data reflected in the documents has been
redacted as it does not fall within the scope of your application.
With regard to document 1, please be informed that the European Commission has
carried out a search for the parts of the document which are missing from the version
attached to this decision, including a search in the archives of the Directorate-General for
Employment, Social Affairs and Inclusion. However, the European Commission has
unfortunately not been able to locate a full version of the document in question.
As explained in documents 2 and 4, the relevant services of the European Commission
were not able to register all the mails in the complaint-management system given the
large number of complaints submitted at the time (2013). While the digital copy of the
main part of the complaint document was uploaded in the CHAP file, the original version
of the complaint is not retrievable from the archives of the responsible Directorate-
General of the European Commission.
As explained above, the document is herewith fully disclosed in the version available in
the file of CHAP(2014)00148.
3
3.
MEANS OF REDRESS
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
European Ombudsman under the conditions specified respectively in Articles 263 and
228 of the Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Enclosures: (2)
4