Ref. Ares(2021)7716013 - 14/12/2021
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR TRADE
The Director-General
Brussels
TRADE/SW/D1 (2021) 8091020
Ms Margarida Da Silva
Corporate Europe Observatory
Rue d'Edimbourg 26
1050 Ixelles
By email:
ask+request-9995-
xxxxxxxx@xxxxxxxx.xxx
Subject: Your application for access to documents – Ref GestDem 2021/5809 Dear Ms Da Silva,
I refer to your request received on 30 September 2021, registered on the same date and
under the above mentioned registration number.
1.
SCOPE OF YOUR REQUEST
In your request you ask to receive access to the following documents:
“ - agenda for the inaugural Trade and Technology [Council] (TTC);
- proposals discussed during the TTC;
- minutes, verbatim reports, transcripts, that would provide a record of the proceedings
of the TTC meetings;
- list of participants of the TTC;
- any position paper, presentation, or any other document from stakeholders submitted
for consideration or presented during the TTC. ”
We have identified the following documents that are falling under the scope of this
request and that are assessed in this reply letter:
1. Agenda for the inaugural meeting of the TTC and stakeholder roundtable in
Pittsburgh on 29 September 2021, including the participants lists
(Ares(2021)7174626).
2. Internal report on the inaugural meeting of the TTC and virtual stakeholder
roundtable in Pittsburgh on 29 September 2021 (Ares(2021)6035871).
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: CHAR 07/067 - Tel. direct line +32 229-60143
xxxxxx.xxxxxx@xx.xxxxxx.xx
In addition to these documents, the inaugural meeting of the EU-U.S. Trade &
Technology Council resulted in a joint statement in areas ranging from technology
standards to trade opportunities. This joint statement sets out the proposals that have been
discussed during the TTC inaugural meeting and can be consulted publicly on the
Commission’s website:
https://ec.europa.eu/commission/presscorner/detail/en/statement_21_4951
No documents were identified that have been submitted or presented by stakeholders
during the TTC inaugural meeting that would fall within the scope of your request.
2.
ASSESSMENT AND CONCLUSION
In accordance with settled case law, when an institution is asked to disclose a document,
it must assess, in each individual case, whether that document falls within the exceptions
to the right of public access to documents set out in Article 4 of Regulation 1049/2001.1
Such assessment is carried out in a multi-step approach. First, the institution must satisfy
itself that the document relates to one of the exceptions, and if so, decide which parts of it
are covered by that exception. Second, it must examine whether disclosure of the parts of
the document in question would undermine the protection of the interest covered by the
exception. Third, the risk of that interest being undermined must be "
reasonably foreseeable
and not purely hypothetical".2 If the institution takes the view that disclosure would
undermine the protection of any of the interests defined under Article 4(2) of Regulation
1049/2001, the institution is required "
to ascertain whether there is any overriding public
interest justifying disclosure".3
In view of the objectives pursued by Regulation 1049/2001, notably to give the public the
widest possible right of access to documents4, "
the exceptions to that right […] must be
interpreted and applied strictly"5
.
Having carefully examined each of the documents falling in the scope of your request, we
inform you that both documents can be disclosed partially. Full disclosure of
documents
1 and 2 would undermine the protection of personal data. In addition
document 2 includes information the disclosure of which would undermine the EU’s international
relations. The non-disclosed elements are covered respectively by the exceptions set out
in Article 4.1(a) third indent and Article 4.1(b) of Regulation 1049/2001. The reasons
justifying the application of the exceptions are set out below in sections 2.1 and 2.2.
1 Judgment in Sweden and Maurizio Turco v Council, Joined cases C-39/05 P and C-52/05 P,
EU:C:2008:374, paragraph 35.
2
Id., paragraphs 37-43. See also judgment in
Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039,
paragraphs 52 and 64.
3
Id., paragraphs 37-43. See also judgment in
Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039,
paragraphs 52 and 64.
4 Regulation (EC) No 1049/2001, recital (4).
5 Judgment in
Sweden v Commission, C-64/05 P, EU:C:2007:802, paragraph 66.
2
2.1 Protection of the public interest as regards international relations
(document 2)
Article 4(1)(a), third indent, of Regulation 1049/2001 provides that ‘
[t]he institutions
shall refuse access to a document where disclosure would undermine the protection of:
the public interest as regards: […] international relations’.
According to settled case-law, ‘
the particularly sensitive and essential nature of the
interests protected by Article 4(1)(a) of Regulation 1049/2001, combined with the fact
that access must be refused by the institution, under that provision, if disclosure of a
document to the public would undermine those interests, confers on the decision which
must thus be adopted by the institution a complex and delicate nature which calls for the
exercise of particular care. Such a decision therefore requires a margin of
appreciation’6. In this context, the Court of Justice has acknowledged that the
institutions enjoy ‘
a wide discretion for the purpose of determining whether the
disclosure of documents relating to the fields covered by [the] exceptions [under Article
4(1)(a)] could undermine the public interest’7.
The General Court found that ‘
it is possible that the disclosure of European Union
positions in international negotiations could damage the protection of the public interest
as regards international relations’ and ‘have a negative effect on the negotiating position
of the European Union’ as well as ‘reveal, indirectly, those of other parties to the
negotiations’8. Moreover, ‘
the positions taken by the Union are, by definition, subject to
change depending on the course of those negotiations and on concessions and
compromises made in that context by the various stakeholders. The formulation of
negotiating positions may involve a number of tactical considerations on the part of the
negotiators, including the Union itself. In that context, it cannot be precluded that
disclosure by the Union, to the public, of its own negotiating positions, when the
negotiating positions of the other parties remain secret, could, in practice, have a
negative effect on the negotiating capacity of the Union’ 9.
Document 2 contains an internal assessment of the first meeting of the Trade and
Technology Council. The document in question was meant to inform and support the
internal policy making process, and to be used subsequently as a basis to further establish
European positions, strategies, objectives and the way forward on specific aspects of
discussions relating to the EU-US Trade and Technology Council.
More specifically, the document contains detailed and sensitive information on topics
related to the Trade and Technology Council that was shared in confidence between the
Commission and its US interlocutors, as well as internal assessments of a partner
country’s policy positions. Therefore a concrete risk exists that the public disclosure of
6 Judgment in
Sison v Council, C-266/05 P, EU:C:2007:75, paragraph 35.
7 Judgment in
Council v Sophie in ‘t Veld, C-350/12P, EU:C:2014:2039, paragraph 63.
8 Judgment in
Sophie in’t Veld v Commission, T-301/10, EU:T:2013:135, paragraphs 123-125.
9 Id., paragraph 125.
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parts of this document would affect the mutual trust between the EU and the US and thus
undercut their relations.
Furthermore, disclosure of parts of the document would reveal to the public the EU’s
own detailed negotiating positions, and could thereby undermine the room for
negotiation needed by the EU and its Member States to conclude those negotiations. The
discussions taking place in the different working groups and at Ministerial level are
intended to produce concrete deliverables on issues of substance where views between
both sides may differ. Due to the nature of these discussions therefore, disclosure by the
Union, to the public, of its detailed positions could, in practice, have a negative effect on
the negotiating capacity of the Union.
In addition, it should be noted that the way in which the authorities of a third country
perceive the positions of the EU has an impact on the relations established with that third
country. The quality of our relations with third countries depends on that perception.
Against this background, we consider that the public disclosure of parts of the listed
document would negatively affect both the ability of the European Commission to
establish and maintain efficient and trust-based negotiating relations with the US in the
context of the Trade and Technology Council and to effectively defend EU interests in
the context of the ongoing discussions within the Trade and Technology Council.
We consider that risk as reasonably foreseeable and non-hypothetical, as it would reveal
the EU's and a third country’s approaches and preferences, thus weakening the EU’s
negotiation position towards its US counterparts and harming the mutual trust in the
relationship. In sum, we consider that the confidentiality of parts of the requested
document is thus fully protected by a coherent application of the third indent of Article
4(1)(a).
2.2 Protection of personal data (Documents 1 and 2)
Pursuant to Article 4(1)(b) of Regulation 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/EC10 (‘Regulation 2018/1725’).
Indeed, Article 3(1) of Regulation 2018/1725 provides that personal data ‘
means any
information relating to an identified or identifiable natural person […]’. The Court of
Justice has specified that
any information, which by reason of its content, purpose or effect,
10 Official Journal L 205 of 21.11.2018, p. 39.
4
is linked to a particular person is to be considered as personal data.11 Please note in this
respect that the names, signatures, functions, telephone numbers and/or initials pertaining to
staff members of an institution are to be considered personal data.12
In its judgment in Case C-28/08 P (
Bavarian Lager)13, the Court of Justice ruled that when a
request is made for access to documents containing personal data, the Data Protection
Regulation becomes fully applicable14. Document 2 contains personal information such as
names that allows the identification of natural persons.
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 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
2018/1725, can the transmission of personal data occur.
According to Article 9(1)(b) of Regulation 2018/1725, the European Commission has to
examine the further conditions for a lawful processing of personal data only if the first
condition is fulfilled, namely if the recipient has established 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.
Documents 1 and 2 contain personal data that according to the reasoning set out above
cannot be shared and was thus redacted.
11 Judgment of the Court of Justice of the European Union of 20 December 2017 in C
ase C-434/16, Peter
Novak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35,
ECLI:EU:T:2018:560.
12 Judgment of the General Court of 19 September 2018 in c
ase T-39/17, Port de Brest v Commission,
paragraphs 43-44,
ECLI:EU:T:2018:560.
13 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.
14 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.
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3.
MEANS OF REDRESS
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 and Access to Documents unit SG-C.1
BERL 7/076
B-1049 Brussels
Belgium
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
Sabine WEYAND
6
Electronically signed on 13/12/2021 15:30 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482
Document Outline