Airline and Train Agreements/Contracts with EU institutions

Andreas Pavlou made this access to documents request to Secretariat General of the European Commission

Waiting for an internal review by Secretariat General of the European Commission of their handling of this request.

From: Andreas Pavlou

Delivered

Dear Secretariat General,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:

All contracts and written agreements currently in force between EU institutions and airline and train companies on the use of their services by EU Commissioners and/or staff.

Yours faithfully,

Andreas Pavlou
Access Info Europe
Calle Cava de San Miguel 8, 4c
28005 Madrid
Spain

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Secretariat General of the European Commission


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Dear Mr Pavlou,
 
Thank you for your e-mail  dated 17/11/2016.  We hereby acknowledge
receipt of your application for access to documents, which was registered
on 18/11/2016 under GESTDEM 2016/6484 reference
 
In accordance with Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, your application
will be handled within 15 working days. The time limit will expire on
09/12/2016. In case this time limit needs to be extended, you will be
informed in due course.
 
You have lodged your application via the AsktheEU.org website. Please note
that this is a private website which has no link with any institution of
the European Union. Therefore the European Commission cannot be held
accountable for any technical issues or problems linked to the use of this
system.

 
Yours faithfully,
 
ACCESS TO DOCUMENTS TEAM
European Commission
Secretariat General
Unit B4 – Transparency
 

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From: EC ARES NOREPLY
Secretariat General of the European Commission


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Veuillez trouver ci-joint le document Ares(2016)6874695 concernant "Access to documents request - Airline and Train Agreements/Contracts with EU institutions - GESTDEM 2016/6484 - Holding reply" envoyé par M/Mme GAFFEY Veronica le 09/12/2016.

Please find attached document Ares(2016)6874695 regarding "Access to documents request - Airline and Train Agreements/Contracts with EU institutions - GESTDEM 2016/6484 - Holding reply" sent by Mr/Ms GAFFEY Veronica on 09/12/2016.

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Note: This e-mail was automatically generated by the European Commission's central mail registration system.
Replies by e-mail must be addressed to the original sender GAFFEY Veronica (mailto:[email address]).
Remarque : Cet e-mail a été généré automatiquement par le système d'enregistrement central du courrier de la Commission européenne.
Toute réponse éventuelle par e-mail doit être adressée à l'expéditeur en personne, à savoir GAFFEY Veronica (mailto:[email address]).

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From: EC ARES NOREPLY
Secretariat General of the European Commission


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Veuillez trouver ci-joint le document Ares(2017)88454 concernant "Access to documents request - Airline and Train Agreements/Contracts with EU institutions - GESTDEM 2016/6484 - Negative reply" envoyé par M/Mme GAFFEY Veronica le 09/01/2017.

Please find attached document Ares(2017)88454 regarding "Access to documents request - Airline and Train Agreements/Contracts with EU institutions - GESTDEM 2016/6484 - Negative reply" sent by Mr/Ms GAFFEY Veronica on 09/01/2017.

-------------------------------------------------------------------------------------------------------------
Note: This e-mail was automatically generated by the European Commission's central mail registration system.
Replies by e-mail must be addressed to the original sender GAFFEY Veronica (mailto:[email address]).
Remarque : Cet e-mail a été généré automatiquement par le système d'enregistrement central du courrier de la Commission européenne.
Toute réponse éventuelle par e-mail doit être adressée à l'expéditeur en personne, à savoir GAFFEY Veronica (mailto:[email address]).

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From: Andreas Pavlou

Delivered

Reference number: GestDem No 2016/6484

Dear Secretary-General,

Following my request for access to documents of 17 November 2016, I am hereby submitting a confirmatory application in accordance with Article 7(2) [1] and of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (hereinafter “Regulation 1049/2001” or “the Regulation”).

I. FACTUAL BACKGROUND
On 17 November 2016 I requested, via the AsktheEU.org portal, access to all contracts and written agreements currently in force between EU institutions and airline and train companies on the use of their services by EU Commissioners and/or staff.

The Commission acknowledged receipt of the application on 18 November 2016.

I then received a letter from the Commission on 9 December 2016 which explained that it would extend the deadline by another 15 working days, on the grounds that “the documents requested originate from third parties who have been consulted with a view to assessing whether an exception in Article 4, paragraph 1 or 2, of Regulation (EC) No 1049/2001 regarding public access to documents is applicable.”

Thereafter, on 9 January 2017, the Commission informed me that it had declined my application for access to the documents I requested on the grounds that:

“…disclosure is prevented by an exception to the right of access laid down in Article 4 of this Regulation. Indeed the documents which you seek to obtain *contain commercially sensitive business information of the companies that submitted them*. The authors of the documents have objected to disclosure of documents that they sent to the Commission and have motivated their position on the basis of the grounds specified above”(emphasis added).

The Commission thus appears to invoke the first indent of Article 4(2) of the Regulation, which states:

“The institutions shall refuse access to a document where disclosure would undermine the protection of
- commercial interests of a natural or legal person, including intellectual property,
[…]
unless there is an overriding public interest in disclosure.”

As will be set out below, the Commission’s letter falls well short of the standard required by Regulation 1049/2001 for refusing requests for access to documents. Indeed, the Commission has provided almost no details justifying why it has taken the decision to refuse access to the requested documents.

II. SUBSTANTIVE ASSESSMENT
It should be stated at the outset that, in accordance with recital 11 of Regulation 1049/2001, the general principle is that “all documents of the institutions should be accessible to the public.” Article 4 of the Regulation does of course allow for certain exceptions. Due to the fact that these are ‘exceptions’ to the general rule, the burden is on the institution seeking to rely on an exception to prove to the requisite legal standard that the refusal to disclose is justified.

This means that, in the case at hand, the Commission bears the burden of proving that disclosure of the requested documents would “undermine the protection of commercial interests of a natural or legal person” (first indent of Article 4(2) of the Regulation).

Furthermore, in accordance with established case law, in order to justify refusing access to a document the disclosure of which has been requested, it is not enough for that document to merely be covered by one of the exceptions in Article 4(2) or 4(3) of Regulation No 1049/2001. [2] The EU institution concerned must, according to the wording of Sweden and Turco v Council (“Turco”), [3] also provide explanations on two aspects:

“*first*, how access to that document could *specifically* and *effectively undermine the interest* protected by an exception laid down in Article 4 of Regulation No 1049/2001 relied on by that institution and, *secondly*, in the situations referred to in Article 4(2) and (3) of that regulation, whether or not there is an *overriding public interest* that might nevertheless justify disclosure of the document concerned” (emphasis added). [4]

It will first be argued that access to the requested documents does not undermine the protection of commercial interests of a natural or legal person. In the alternative, if it were to be regarded that disclosure would undermine the given interest (which I argue is not the case), there would nevertheless be an overriding public interest in fully disclosing the documents.

a. Access to the documents does not specifically and effectively undermine the protection of commercial interests of a natural or legal person

The Commission does not explain how exactly disclosure of the requested documents could *specifically* and *effectively* undermine the protection of commercial interests of a natural or legal person.

The Court in the above cited Turco case condemned the Council for relying on “mere assertions, which were in no way substantiated by detailed arguments” and stated that “there would appear to be no real risk that is reasonably foreseeable and not purely hypothetical of that interest being undermined.”

It is wholly apparent that the Commission is, like the Council in Turco, relying on unsubstantiated assertions, despite the burden being on the institution—rather than the party seeking access to the documents—to demonstrate why it should benefit from an exception to the general rule that all documents of the institutions should be accessible to the public.

All the Commission has stated is that the requested documents contain “commercially sensitive business information” without any further elaboration. We do not see how providing access to the contracts and written agreements currently in force between EU institutions and airline and train companies on the use of their services by EU Commissioners and/or staff could possibly harm the commercial interests of these companies. An explanation by the Commission on this point is required.

Furthermore, according to Article 4(6) of the Regulation, “If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.”

Therefore, even if the Commission, following its consultations with the companies concerned, identified documents that could specifically and effectively undermine the protection of the commercial interests of these companies, the commercially sensitive information could surely be redacted so that the key details may be accessed, as happens in other areas of EU law, such as competition law.

If the Commission does not wish to provide the reasons why disclosure of the requested documents would undermine the protection of commercial interests, we may feel compelled to submit a fresh request for access to the correspondence between the affected companies and the Commission in this regard.

b. There is an overriding public interest in disclosure

Even should the Commission determine that that disclosure of the requested documents, at least in part, would undermine a protected interest, I assert that there would nevertheless be an overriding public interest in fully disclosing the documents.

The principle of good governance set out in Article 15 TFEU as developed through the case law of the European Court of Justice as well as decisions of the European Ombudsman clearly point to the principle of maximum possible transparency in the spending and use of public funds.

Hence there is an overriding public interest in ensuring public scrutiny over the spending of public funds, and as such, over the contracts and agreements concluded by the EU with third parties for providing services to the EU institutions.

Citizens have a right to know how much public money has been spent on tenders for services used by the EU institutions. They have a right to know and form an opinion as to whether the price paid by public institutions is suitable to the services rendered. This is particularly the case when it comes to the funding of the core activities of the Commission, such as spending on travel by the College of Commissioners and their staff.

Citizens also have a right to know exactly which companies are providing the services used by EU institutions. There is an overriding public interest in permitting the public to verify the appropriateness of the contracts/agreements concluded between the EU institutions and private companies, so as to ensure that there is no conflict of interest between the agreeing parties, particularly given concerns about the influence of lobbyists on decision making in Brussels.

Transparency and public access of the contracts and agreements between public institutions and private companies for services paid for with public money is not an unprecedented practice - in some EU member states such as Slovakia (since 2011)[5] and Slovenia,[6] all such procurement contracts are proactively available to the public. In other countries, such contracts are available based on access to information requests.

Transparency of these contracts carries a particular public interest at the current time, given the accusations of misspending that are leveled at Brussels. Indeed, not to reveal the contract could actually be damaging to the public interest in the probity of the European Commission, as a lack of access to this information is likely to result in a climate of suspicion and mistrust in which possibly false allegations could be made. The publication of the information could dispel such rumours and hence contribute to protecting the integrity of EU decision making and spending of public funds.

In addition to the broad public interest in this information, I note that there is a particular interest in responding to my request as a representative of a civil society watchdog organisation working on European Union transparency and on transparency of spending on travel by the Commissioners in particular. As confirmed by the European Court of Human Rights, public watchdogs, including civil society and journalists, play an important role in a democratic society and as such there is an obligation on public authorities to provide them with the information necessary to fulfill this function.

III. CONCLUSION
In light of the arguments above, I hereby request full access to the requested documents.

Yours faithfully,

Andreas Pavlou
Access Info Europe

[1] “In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution's reply, make a confirmatory application asking the institution to reconsider its position.”
[2] Case C-612/13 P, ClientEarth v European Commission, ECLI:EU:C:2015:486, paragraph 64; Case C‑365/12 P, Commission v EnBW, EU:C:2014:112, paragraph 64
[3] Joined Cases C 39/05 P and C 52/05 P Sweden and Turco v Council [2008] ECR I 4723, paragraph 49
[4] See also Commission v Technische Glaswerke Ilmenau, paragraph 53; Commission v Éditions Odile Jacob, paragraph 116; Commission v Agrofert Holding, paragraph 57; and LPN and Finland v Commission, paragraph 44.
[5] http://www.crz.gov.sk
[6] http://www.enarocanje.si/objavaPogodb/

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Secretariat General of the European Commission


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Dear Mr Pavlou,

 

Thank you for your email dated 27/01/2017, by which you request, pursuant
to Regulation No 1049/2001 regarding public access to European Parliament,
Council and Commission documents, a review of the position taken by DG HR
in reply to your initial application GESTDEM 2016/6484.

 

We hereby acknowledge receipt of your confirmatory application for access
to documents which was registered on 31/01/2017 Ares(2017)495423.

 

Your application will be handled within 15 working days 20/02/2017.   In
case this time limit needs to be extended, you will be informed in due
course.

 

Please be informed that the answer to your confirmatory application is a
formal Commission decision that will be notified to you by express
delivery.  We kindly offer you the possibility to provide us a contact
phone number (by email to [1][email address]), so that the
external delivery service can contact you in case of absence.

 

Please note that the Commission will not use your phone number for any
other purpose than for informing the delivery service, and that it will
delete it immediately thereafter.

 

Yours faithfully,

 

 

Access to Document Team (L.N)
[2]cid:image003.png@01D20379.577335A0
European Commission

Secrétariat Général

SG.B4 - Transparency

 

BERL 05/288
B-1049 Brussels/Belgium

 

 

From: Andreas Pavlou [mailto:[email address]]
Sent: Friday, January 27, 2017 1:37 PM
To: SG ACCES DOCUMENTS
Cc: 'Helen Darbishire'
Subject: Confirmatory application 2016/6484

 

Dear Secretariat General,

 

Please find attached a confirmatory application for my request GESTDEM
2016/6484.

 

I have also sent this confirmatory application via the AsktheEU.org
website, and I would very much appreciate that a response is sent via the
original asktheEU.org email from which I sent my request on 17 November
2016 ([3][FOI #3569 email]).

 

Many thanks

 

Andreas

--
Andreas Pavlou
RTI Campaigner & Researcher
Access Info Europe | [4]https://www.access-info.org
Twitter: @andreaspavlou @Access_Info @AsktheEU
Madrid office: +34 913 656 558
Mobile: +34 664 779 124

 

 

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From: Andreas Pavlou


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Dear ADT,

 

Many thanks for your message.

 

My contact telephone number is the following +34 913 656 558

 

Best

 

Andreas

--
Andreas Pavlou
RTI Campaigner & Researcher
Access Info Europe | [1]https://www.access-info.org
Twitter: @andreaspavlou @Access_Info @AsktheEU
Madrid office: +34 913 656 558
Mobile: +34 664 779 124

 

 

 

From: [email address] [mailto:[email address]]
Sent: 30 January 2017 15:50
To: [FOI #3569 email]
Cc: [email address]
Subject: Your Confirmatory application 2016/6484

 

Dear Mr Pavlou,

 

Thank you for your email dated 27/01/2017, by which you request, pursuant
to Regulation No 1049/2001 regarding public access to European Parliament,
Council and Commission documents, a review of the position taken by DG HR
in reply to your initial application GESTDEM 2016/6484.

 

We hereby acknowledge receipt of your confirmatory application for access
to documents which was registered on 31/01/2017 Ares(2017)495423.

 

Your application will be handled within 15 working days 20/02/2017.   In
case this time limit needs to be extended, you will be informed in due
course.

 

Please be informed that the answer to your confirmatory application is a
formal Commission decision that will be notified to you by express
delivery.  We kindly offer you the possibility to provide us a contact
phone number (by email to [2][email address]), so that the
external delivery service can contact you in case of absence.

 

Please note that the Commission will not use your phone number for any
other purpose than for informing the delivery service, and that it will
delete it immediately thereafter.

 

Yours faithfully,

 

 

Access to Document Team (L.N)
[3]cid:image003.png@01D20379.577335A0
European Commission

Secrétariat Général

SG.B4 - Transparency

 

BERL 05/288
B-1049 Brussels/Belgium

 

 

From: Andreas Pavlou [mailto:[email address]]
Sent: Friday, January 27, 2017 1:37 PM
To: SG ACCES DOCUMENTS
Cc: 'Helen Darbishire'
Subject: Confirmatory application 2016/6484

 

Dear Secretariat General,

 

Please find attached a confirmatory application for my request GESTDEM
2016/6484.

 

I have also sent this confirmatory application via the AsktheEU.org
website, and I would very much appreciate that a response is sent via the
original asktheEU.org email from which I sent my request on 17 November
2016 ([4][FOI #3569 email]).

 

Many thanks

 

Andreas

--
Andreas Pavlou
RTI Campaigner & Researcher
Access Info Europe | [5]https://www.access-info.org
Twitter: @andreaspavlou @Access_Info @AsktheEU
Madrid office: +34 913 656 558
Mobile: +34 664 779 124

 

 

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Secretariat General of the European Commission


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Dear Mr Pavlou,

 

Please find attached a note for your attention regarding your confirmatory
application GestDem 2016/6484.

 

Best regards,

 

 

 

ACCESS TO DOCUMENTS (NL)

[1]cid:image002.jpg@01CFC082.A6D14DD0
European Commission
Secretariat General
B4 – Transparency

 

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Secretariat General of the European Commission


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Dear Mr Pavlou,

 

Please find attached a note for your attention regarding your confirmatory
application GestDem 2016/6484.

 

Best regards,

 

 

 

ACCESS TO DOCUMENTS (NL)

[1]cid:image002.jpg@01CFC082.A6D14DD0
European Commission
Secretariat General
B4 – Transparency

 

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