Ref. Ares(2021)2433524 - 09/04/2021
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR ENERGY
The Director-General
Brussels 09-04-2021
ENER.DJ/HN/mw(2021)2294905
Dear Ms García Pallarés,
Subject:
Your application for access to documents – GESTDEM 2021/1237 and
2021/1279
I refer to your e-mails dated 4 and 5 March 2021, by which you make the request for
access to the documents existing in relation to the second, third and fourth rounds of
negotiations for the modernisation of the Energy Charter Treaty (ECT), that took place
between 8-11 September 2020, 3-6 November 2020, and 2-5 March 2021 respectively,
including the list of countries participating to those negotiations.
As per your request, please note that the EU proposals serving as negotiating directives
for the rounds of negotiations in question, have been published by the Commission, as
follows:
- For round 2
: https://trade.ec.europa.eu/doclib/press/index.cfm?id=2181
- For r
ound 3: https://trade.ec.europa.eu/doclib/press/index.cfm?id=2206
- For round 4:
https://trade.ec.europa.eu/doclib/press/index.cfm?id=2248 and
https://ec.europa.eu/energy/sites/default/files/eu_submission_-
_revised_definition_of_economic_activity_in_the_energy_sector.pdf
Also, please note that the Energy Charter Secretariat has issued public communications
regarding each of the rounds of negotiations concerned, available online, as follows:
- For
round
2:
https://www.energycharter.org/media/news/article/public-
communication-on-the-second-negotiation-round-on-the-modernisation-of-the-
ect-
publich/?tx_news_pi1%5Bcontroller%5D=News&tx_news_pi1%5Baction%5D=
detail&cHash=284d1595d54f1d36a3cccb1dbee035fb
- For
round
3:
https://www.energycharter.org/media/news/article/public-
communication-on-the-third-negotiation-round-on-the-modernisation-of-the-ect-
publichn/?tx_news_pi1%5Bcontroller%5D=News&tx_news_pi1%5Baction%5D
=detail&cHash=1bdef6ab6f493b1dd9156b0fd2d083e0
- For
round
4:
https://www.energycharter.org/media/news/article/public-
communication-on-the-fourth-negotiation-round-of-the-modernisation-of-the-
energy-charter-
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: DM24 08/084 - Tel. direct line +32 229-62496
trea/?tx_news_pi1%5Bcontroller%5D=News&tx_news_pi1%5Baction%5D=deta
il&cHash=b7020b853468e2313e3bd40a5fd91f4f
The ECT Contracting Parties that attended the negotiations appear in the summary
records of the meetings in question, which are restricted documents issued by the ECT
Secretariat.
I regret to inform you that the Commission cannot grant you access to these summary
records, which are available for consultation only by the competent authorities of the
ECT Contracting Parties, directly on the restricted part of the ECT website. Disclosure of
these records would undermine the protection of the public interest as regards
international relations within the meaning of Article 4(1)(a), third indent, of Regulation
(EC) No 1049/2001. The non-disclosed summary records contain information the
disclosure of which would reveal the internal information sent in confidence, relevant
personal data of a third party, and their disclosure could undermine relations between the
Energy Charter Secretariat and Contracting Parties, including the European Union and its
Member States. Furthermore, since the entirety of these summary records is covered by
the above mentioned exception, it is not possible to partially disclose them in accordance
with Article 4(6) of Regulation (EC) No 1049/2001.
Moreover, the summary records contain personal data. Pursuant to Article 4(l)(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 the integrity of the individual, in
particular in accordance with European Union legislation regarding the protection of
personal data.
The applicable legislation in this field is Regulation (EC) 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 free movement of such data, and repealing Regulation (EC) No
45/2001 and Decision No 1247/2002/EC1 (‘Regulation 2018/1725’).
In its judgment in Case C-28/08 P (Bavarian Lager)2, the Court of Justice ruled that when
a request is made for access to documents containing personal data, the Data Protection
Regulation becomes fully applicable3.
Pursuant to Article 9(1)(b) of Regulation 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
1 Official Journal L 205 of 21.11.2018, p. 39.
2 Judgment of 29 June 2010 in Case C-28/08 P,
European Commission v The Bavarian Lager Co. Ltd,
EU:C:2010:378, paragraph 59.
3 Whereas this judgment specifically related to 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 data, the principles set out
therein are also applicable under the new data protection regime established by Regulation 2018/1725.
2
demonstrably weighed the various competing interests’.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation 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
disclosure of the personal data concerned.
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting the Commission to review this position.
Such a confirmatory application should be addressed within 15 working days upon
receipt of this letter to the Secretary-General of the Commission at the following address:
European Commission Secretary-General
Transparency, Document Management & Access to Documents (SG.C.l)
BERL 7/076 B-1049 Bruxelles
or by email t
o: xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
[E-signed]
Ditte Juul Jørgensen
3
Electronically signed on 09/04/2021 11:06 (UTC+02) in accordance with article 11 of Commission Decision C(2020) 4482