All Commission replies to confirmatory applications in 2018

Response to this request is long overdue. By law, under all circumstances, Secretariat General of the European Commission should have responded by now (details). You can complain by requesting an internal review.

Maarten Hillebrandt

Dear Secretariat General of the European Commission,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am writing you to make the following request for access to documents .

In the Annex to the report from the Commission on the application in 2018 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (COM(2019) 356 final), the Commission states under point 4 that in 2018, it submitted 288 replies to confirmatory applications based on Regulation(EC)No1049/2001.

For the purpose of academic research, I would like to request full access to all of these 288 replies.

Yours faithfully,

Maarten Hillebrandt

Secretariat General of the European Commission

Your message has been received by the Transparency Unit of the
Secretariat-General of the European Commission.
Requests for public access to documents are treated on the basis of
[1]Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents.
The Secretariat-General will reply to your request within 15 working days
upon registration of your request and will duly inform you of the
registration of the request (or of any additional information to be
provided in view of its registration and/or treatment).
 
 
L’unité «Transparence» du secrétariat général de la Commission européenne
a bien reçu votre message.
Les demandes d’accès du public aux documents sont traitées sur la base du
[2]règlement (CE) n° 1049/2001 du 30 mai 2001 relatif à l’accès du public
aux documents du Parlement européen, du Conseil et de la Commission.
Le secrétariat général répondra à votre demande dans un délai de 15 jours
ouvrables à compter de la date d’enregistrement de votre demande, et vous
informera de cet enregistrement (ou vous indiquera toute information
supplémentaire à fournir en vue de l'enregistrement et/ou du traitement de
votre demande).
 
 
Ihre Nachricht ist beim Referat „Transparenz“ des Generalsekretariats der
Europäischen Kommission eingegangen.
Anträge auf Zugang zu Dokumenten werden auf der Grundlage der
[3]Verordnung (EG) Nr. 1049/2001 vom 30. Mai 2001 über den Zugang der
Öffentlichkeit zu Dokumenten des Europäischen Parlaments, des Rates und
der Kommission behandelt.
Das Generalsekretariat beantwortet Ihre Anfrage innerhalb von
15 Arbeitstagen nach deren Registrierung und wird Sie über die
Registrierung Ihres Antrags (oder die Notwendigkeit weiterer Informationen
im Hinblick auf dessen Registrierung und/oder Bearbeitung) unterrichten.
 
 

References

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1. https://eur-lex.europa.eu/legal-content/...
2. https://eur-lex.europa.eu/legal-content/...
3. https://eur-lex.europa.eu/legal-content/...

Secretariat General of the European Commission

1 Attachment

Dear Maarten Hillebrandt,
Thank you for your request for access to documents. Unfortunately, you
have not indicated your postal address that is required for registering
and handling your request in line with the procedural requirements. Please
send us your full postal address at your earliest convenience.
Pending your reply, we reserve the right to refuse the registration of
your request.
You may, of course, use directly the electronic form for entering your
request:
[1]http://ec.europa.eu/transparency/regdoc/...
Best regards,
 
ACCESS TO DOCUMENTS TEAM
 
European Commission
Secretariat-General
Unit C1 – Transparency, Document Management & Access to Documents
 
[2]HOW WE PROCESS PERSONAL DATA
 
 
 
 

show quoted sections

Maarten Hillebrandt

Dear Secretariat General of the European Commission,

Thank you for your reply. The postal address to be used for this request as well as for the other requests made today to the Commission Secretariat General is:

Dr. Maarten Hillebrandt
University of Helsinki
Faculty of Law
Eric Castrén Institute
Yliopistonkatu 3
00101 Helsinki
Finland

Yours faithfully,

Maarten Hillebrandt

Secretariat General of the European Commission

Your message has been received by the Transparency Unit of the
Secretariat-General of the European Commission.
Requests for public access to documents are treated on the basis of
[1]Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents.
The Secretariat-General will reply to your request within 15 working days
upon registration of your request and will duly inform you of the
registration of the request (or of any additional information to be
provided in view of its registration and/or treatment).
 
 
L’unité «Transparence» du secrétariat général de la Commission européenne
a bien reçu votre message.
Les demandes d’accès du public aux documents sont traitées sur la base du
[2]règlement (CE) n° 1049/2001 du 30 mai 2001 relatif à l’accès du public
aux documents du Parlement européen, du Conseil et de la Commission.
Le secrétariat général répondra à votre demande dans un délai de 15 jours
ouvrables à compter de la date d’enregistrement de votre demande, et vous
informera de cet enregistrement (ou vous indiquera toute information
supplémentaire à fournir en vue de l'enregistrement et/ou du traitement de
votre demande).
 
 
Ihre Nachricht ist beim Referat „Transparenz“ des Generalsekretariats der
Europäischen Kommission eingegangen.
Anträge auf Zugang zu Dokumenten werden auf der Grundlage der
[3]Verordnung (EG) Nr. 1049/2001 vom 30. Mai 2001 über den Zugang der
Öffentlichkeit zu Dokumenten des Europäischen Parlaments, des Rates und
der Kommission behandelt.
Das Generalsekretariat beantwortet Ihre Anfrage innerhalb von
15 Arbeitstagen nach deren Registrierung und wird Sie über die
Registrierung Ihres Antrags (oder die Notwendigkeit weiterer Informationen
im Hinblick auf dessen Registrierung und/oder Bearbeitung) unterrichten.
 
 

References

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1. https://eur-lex.europa.eu/legal-content/...
2. https://eur-lex.europa.eu/legal-content/...
3. https://eur-lex.europa.eu/legal-content/...

Secretariat General of the European Commission

1 Attachment

Dear Maarten Hillebrandt,
Thank you for your e-mails dated 09/12/2019.  We hereby acknowledge
receipt of your five requests for access to documents, which were
registered on 09/12/2019 under reference numbers GESTDEM 2019/7132,
2019/7134, 2019/7136, 2019/7137 and 2019/7138.
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
09/01/2020. In case this time limit needs to be extended, you will be
informed in due course.
 
Your applications concern a very large number of document, which need to
be assessed individually. Such a detailed analysis cannot be carried out
within the normal time limits set out in Article 7 of Regulation (EC) No
1049/2001.
 
However, the Regulation also provides for a possibility to confer with
applicants in order to find a fair solution when an application relates to
a very large number of documents, therefore it would be helpful if you
could limit the scope of your requests already at this stage. Article 6(3)
provides that in the event of an application relating to a very large
number of documents, the institution concerned may confer with the
applicant informally, with a view to finding a fair solution.
 
This means that the scope of the request must be reduced in a way that
would enable its treatment within the extended deadline of 15 + 15 working
days. As you will see, there are approximately 300 hundred confirmatory
decisions per year, which would result in a disproportionate
administrative burden when dealing with your requests.
 
We would appreciate it very much if you could already at this stage limit
your requests to a limited number per year, possibly to include only the
policy area that is of interest to you.
 
Best regards,
 
ACCESS TO DOCUMENTS TEAM
 
European Commission
Secretariat-General
Unit C1 – Transparency, Document Management & Access to Documents
 
[1]HOW WE PROCESS PERSONAL DATA
 
 

show quoted sections

Maarten Hillebrandt

Dear Secretariat General of the European Commission,

Many thanks for your message in response to my 5 requests for access to documents held by the Commission.

In your message, you are proposing to come to a reasonable understanding in order to address the administrative burden that arises from the amount of documents that I requested. However, I do not fully understand your proposal and would like to clarify this.

My question particularly pertains to the following. Either you are asking me whether I would be willing to break down my request into several smaller requests. This strikes me as an adjustment that achieves little in terms of administrative expediency. Alternatively, you are asking me to request fewer documents. Unfortunately, this would defeat the purpose of my request altogether, which relies on a large and complete dataset of Commission confirmatory applications. I note, in this context, that similar documents produced by the Council are systematically placed on its document register, allowing members of the public to download them without any further administrative burden on the part of that institution. It do not see any relevant conditions that would prevent the Commission from doing the same. Given these circumstances, I cannot but conclude that the administrative burden caused by my request is the result of a policy choice made by the Commission itself.

I await your clarification concerning which of the above reasonable solutions it is that you are proposing.

Yours faithfully,

Maarten Hillebrandt

Secretariat General of the European Commission

Your message has been received by the Transparency Unit of the
Secretariat-General of the European Commission.
Requests for public access to documents are treated on the basis of
[1]Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents.
The Secretariat-General will reply to your request within 15 working days
upon registration of your request and will duly inform you of the
registration of the request (or of any additional information to be
provided in view of its registration and/or treatment).
 
 
L’unité «Transparence» du secrétariat général de la Commission européenne
a bien reçu votre message.
Les demandes d’accès du public aux documents sont traitées sur la base du
[2]règlement (CE) n° 1049/2001 du 30 mai 2001 relatif à l’accès du public
aux documents du Parlement européen, du Conseil et de la Commission.
Le secrétariat général répondra à votre demande dans un délai de 15 jours
ouvrables à compter de la date d’enregistrement de votre demande, et vous
informera de cet enregistrement (ou vous indiquera toute information
supplémentaire à fournir en vue de l'enregistrement et/ou du traitement de
votre demande).
 
 
Ihre Nachricht ist beim Referat „Transparenz“ des Generalsekretariats der
Europäischen Kommission eingegangen.
Anträge auf Zugang zu Dokumenten werden auf der Grundlage der
[3]Verordnung (EG) Nr. 1049/2001 vom 30. Mai 2001 über den Zugang der
Öffentlichkeit zu Dokumenten des Europäischen Parlaments, des Rates und
der Kommission behandelt.
Das Generalsekretariat beantwortet Ihre Anfrage innerhalb von
15 Arbeitstagen nach deren Registrierung und wird Sie über die
Registrierung Ihres Antrags (oder die Notwendigkeit weiterer Informationen
im Hinblick auf dessen Registrierung und/oder Bearbeitung) unterrichten.
 
 

References

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1. https://eur-lex.europa.eu/legal-content/...
2. https://eur-lex.europa.eu/legal-content/...
3. https://eur-lex.europa.eu/legal-content/...

Secretariat General of the European Commission

2 Attachments

Dear Sir,

 

Please find attached an advance copy of a letter concerning your initial
requests for access to documents registered under the number GESTDEM
2019/7132 - 2019/7134 - 2019/7136 - 2019/7137 & 2019/7138.

 

Yours faithfully,

 

Access to documents team (cr)
SG.C.1
Transparency
Berl. 07/251

[1]cid:image004.gif@01D4F9CD.7B22B0F0

 

 

References

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Maarten Hillebrandt

Dear Secretariat General of the European Commission,

Thank you for your reply to my previous email in which I requested a clarification of your suggestion to reach a reasonable solution for my series of requests for access to documents. These requests pertained to all confirmatory application decisions during the years 2014-2018. In your letter, you reiterate your position that my requests, which were made in 5 separate parts, would impose an unreasonable administrative burden on the Commission. On the basis of a list of tasks associated with my request, the Commission reaches the conclusion that my requests would take over ten years to complete. Consequently, the Commission proposes to handle 2 confirmatory application decisions per year to which requests pertained, which it presents as a reasonable alternative.

Before I will respond to this proposed solution, I would like to object to a number of procedural aspects of the Commission's dealing with my access to documents requests.

First, I would like to emphasise that my call for access to confirmatory application decisions consisted of 5 separate requests. I did so on purpose, with the aim of fulfilling the requirement of making requests for access to documents with a reasonable volume. The Commission appears to treat my 5 separate requests as a de facto single access request. This becomes, among other things, clear from its calculation of the administrative burden of my requests, which adds up all requested documents across the 5 requests. Regulation 1049/2001 contains no reference to the possibility of unilaterally merging various access to documents requests. Particularly where the question at hand is whether a request does or does not constitute an unreasonable administrative burden, merging the documents requested across separate access to documents requests constitutes an unfair representation of the facts, which places me as an applicant at a disadvantage. I therefore cannot accept the treatment of my 5 separate access to documents requests as a de facto single request. I also protest against the implicit suggestion, entailed in the Commission’s statement that I made “a very wide-scoped request (all confirmatory decisions for the years 2014-2018) by introducing parts of it as seemingly separate requests”, that my access to documents requests are malicious. As I pointed out above, it is exactly for reasons of compliance with a reasonable interpretation of the right of access to documents under Regulation 1049/2001 that I decided to break the request into separate, manageable parts. Under these circumstances, I would expect the Commission to present a separate assessment of administrative burden for each of the requests that I brought.

Second, the Commission sets a deadline of response of 5 days to its offer of a reasonable alternative, one day before Christmas. This deadline is not derived from any known regulation and thus appears arbitrary. At the very least, the Commission does not refer to the rule that would oblige me to respond within 5 days, nor does it explain from where it derives the right to unilaterally rephrase my requests for access should I fail to respond within the set timeframe. I answer to this letter within the set 5 days for fear of being presented with a fait accompli of having my access requests unfairly reduced by the Commission. However, in the absence of a valid procedure for it to do so, this does not mean that I recognise either the deadline of 5 days or any unilateral decision of the Commission to rephrase my access to documents requests as such.

Having made these observations specific to the procedure proposed by the Commission, I make the following observations concerning the substance of the Commission’s assessment of my 5 separate access to documents requests.

First, the Commission offers a figure of the estimated workload entailed by 5 access to documents requests. It estimates the total workload at 3,800 days. This workload assessment, which amounts to 10.4 years if the Commission were working on my requests all days of the week including the weekend, seems both excessive and arbitrary. This is particularly so, since the Commission offers a very summary substantiation of this figure. According to a brief calculation, the workload assessment is based on the consideration of 3 related documents per day. I therefore must conclude that the figure provided is insufficiently substantiated, and as such not credible as a reference point. I am particularly prone to draw this conclusion, since in similar requests for access to confirmatory application decisions and related documents filed with the Council, I have always been able to reach a friendly solution in which the Council dealt with every single requested documents, and in which (partial) access was offered to by far most of the requested documents, within an incomparably shorter time frame. These requests on some occasions covered hundreds of separate documents. I further repeat here the observation, made in my previous email, that the Council makes most of its documents proactively available on its register. If the Commission were to apply the same policy of proactive disclosure, there would be no need for me to make the present access to documents requests. Regrettably, the Commission does not engage with this point in its reply letter, nor does it offer reasons for its deviation from the Council’s disclosure policy on confirmatory applications, which appears to contravene the principle of the ‘widest possible openness’ that underpins Regulation 1049/2001.

Second, while the Commission proposes a friendly solution in my requests for access to documents, the basis for its offer remains fully unsubstantiated and inadequate to the purpose of request as I formulated it in my previous email. The proposed amount of 10 documents appears totally arbitrary, and disproportionately limited in the light of a consideration of administrative burden. After all, on many past occasions, including the recent example cited by the Commission in its response letter, it has responded to access requests far larger than 10 documents, without raising objections concerning administrative burden.

Third, while I stated that I require a data set on confirmatory application decisions that is as complete as possible for scientific purposes of generalisable extrapolation of the Commission’s implementation of Regulation 1049/2001, the Commission in its reply letter does not engage with the stated purpose. It even appears that the Commission has not read my response, as becomes apparent from the question which “policy area” my request pertains to (I clearly stated to be interested in a complete data set, i.e., not in confirmatory application decisions pertaining to particular policy areas). In this context, the Commission’s suggestion to provide access to 10, rather than 1,269 documents (i.e., 0.09% of the amount of documents requested across my 5 requests) appears grossly inadequate and unresponsive to my stated needs as an academic relying on a general right of access to documents. Given the proposed solution, the academic research that I seek to engage in would be impossible. Systematic analyses of the implementation by the European institutions of the right of access to documents, a central instrument underpinning the democratic principles on which the EU is built, forms an important method of analysing the efficiency of this right, thereby clearly serving the public interest. The fact that the Council makes similar documents available without objections, allowing me to conduct the exact same analysis with regard to the Council, which would be impossible to conduct vis-à-vis the Commission, indicates that the terms of access proposed by the Commission are very problematic from the perspective of the public interest that Regulation 1049/2001 has been adopted to serve.

Fourth, I note that the Commission’s treatment of my requests for access is reductive to the extent that it practically amounts to the imposition of a general presumption against access to confirmatory application decisions. This impression is strengthened by the fact that the Commission, in its reply, requires me to provide the reasons for request for access, while Regulation 1049/2001 expressly guarantees access without a need to provide reasons. Moreover, whereas Regulation 1049/2001 requires the European institution in question to offer the widest possible access, a counteroffer to consider access to 0.09% of the estimated amount of requested documents cannot reasonably be construed to comply with this duty. I note that there is no reason that confirmatory application decisions should systematically be withheld from the public, nor does the Commission justify such a near-total refusal to provide access. The fact that the Council systematically offers access upon request, and even to a large extent proactively discloses, confirmatory application decisions, further militates against the de facto imposition of a general presumption against the requested category of documents.

Having reached the above analysis, I cannot but respectfully decline the Commission’s proposal for an alternative interpretation of my 5 separate access to documents requests for access to the Commission’s confirmatory application decisions covering the years 2014-2018. I do, however, still see space for a workable counteroffer that would sufficiently respect my legally enshrined right of public access to documents.

First, in its letter, the Commission stated that my requests were particularly burdensome because the type of documents I requested came with an average of 9.125 annexes per document, all of which would have to be considered. I am happy to state that I have no interest in obtaining access to these annexes, which already significantly reduces the administrative burden of my request (namely, by setting aside over 90% of the documents to be considered). Second, in the interest of reducing the cumulative administrative burden of my 5 requests, I am willing to withdraw all of requests for access except for the one pertaining to 2018, postponing further access requests to a more opportune point in the future.

In view of the substantial reduction of the number of documents requested, I hope that the Commission is willing to accept this friendly solution. For the sake of completeness, I should add that in case the Commission refuses the proposed solution, I will seriously consider filing fast-track complain with the European Ombudsman for maladministration in relation to my five separate access to documents requests, based on the above-provided reasons.

Yours faithfully,

Maarten Hillebrandt

Secretariat General of the European Commission

Your message has been received by the Transparency Unit of the
Secretariat-General of the European Commission.
Requests for public access to documents are treated on the basis of
[1]Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents.
The Secretariat-General will reply to your request within 15 working days
upon registration of your request and will duly inform you of the
registration of the request (or of any additional information to be
provided in view of its registration and/or treatment).
 
 
L’unité «Transparence» du secrétariat général de la Commission européenne
a bien reçu votre message.
Les demandes d’accès du public aux documents sont traitées sur la base du
[2]règlement (CE) n° 1049/2001 du 30 mai 2001 relatif à l’accès du public
aux documents du Parlement européen, du Conseil et de la Commission.
Le secrétariat général répondra à votre demande dans un délai de 15 jours
ouvrables à compter de la date d’enregistrement de votre demande, et vous
informera de cet enregistrement (ou vous indiquera toute information
supplémentaire à fournir en vue de l'enregistrement et/ou du traitement de
votre demande).
 
 
Ihre Nachricht ist beim Referat „Transparenz“ des Generalsekretariats der
Europäischen Kommission eingegangen.
Anträge auf Zugang zu Dokumenten werden auf der Grundlage der
[3]Verordnung (EG) Nr. 1049/2001 vom 30. Mai 2001 über den Zugang der
Öffentlichkeit zu Dokumenten des Europäischen Parlaments, des Rates und
der Kommission behandelt.
Das Generalsekretariat beantwortet Ihre Anfrage innerhalb von
15 Arbeitstagen nach deren Registrierung und wird Sie über die
Registrierung Ihres Antrags (oder die Notwendigkeit weiterer Informationen
im Hinblick auf dessen Registrierung und/oder Bearbeitung) unterrichten.
 
 

References

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1. https://eur-lex.europa.eu/legal-content/...
2. https://eur-lex.europa.eu/legal-content/...
3. https://eur-lex.europa.eu/legal-content/...

Secretariat General of the European Commission

2 Attachments

Dear Maarten Hillebrandt,
Please find attached an advanced copy of the reply to your requests for
access to documents with the reference numbers GESTDEM 2019/7132 +
2019/7134 + 2019/7136 + 2019/7137 and 2019/7138. The original letter has
been sent by registered mail to the postal address you have provided for
these requests.
Best regards,
 
ACCESS TO DOCUMENTS TEAM
 
European Commission
Secretariat-General
Unit C1 – Transparency, Document Management & Access to Documents
 
[1]HOW WE PROCESS PERSONAL DATA
 
 
 
 

References

Visible links
1. https://ec.europa.eu/info/principles-and...

Maarten Hillebrandt

Dear Secretariat General of the European Commission,

On 9 December 2019, I made 5 separate requests for access to documents to the Commission.
On 23 December 2019, the Commission wrote to make a proposal for a fair solution, given, what it considered the excessive administrative burden entailed by my request.

On 28 December 2019, I wrote to reject this fair solution, making a counter-proposal which included reducing my requests to one (namely the request pertaining to documents from 2018), the scope of which I proposed to limit significantly.

On 7 January, the Commission wrote to reject my counter-proposal, countering with an offer for a further significant reduction of the number of documents to be considered.

On 9 January, the Commission wrote to announce that, in further search of a fair solution, it would extend the deadline of consideration of my requests by 15 working days.

On 13 January, I responded to the Commission’s counter-proposal for a fair solution, rejecting it on the basis of a reasoned opinion.

On 30 January 2020, the Commission sent me an email with a number of zip-files in the attachment, encompassing a decision concerning my access to documents request and the documents to which access was granted. It further announced that it would send the original documents by registered mail.

Through this mail, I would like to announce that I have been unable to access the file containing the Commission’s Decision concerning my access request. Trying to open it, the applicable Windows software gave document failures. I then ascertained these failures were due to the file submitted by the Commission, as attempts on another computer gave the same result.

Meanwhile, on 5 February 2020, the Commission’s posted letter with the original Decision still has not arrived. As I intend to make a confirmatory application, I hereby let it be known that I have not yet received the Commission’s reply in the sense provided by Regulation 1049/2001, article 7(2) (“…the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application…”). I therefore reserve the right to take 15 days to draft my response upon my first possibility to take cognisance of the contents of the Commission’s Decision. Given the fact that the previously sent file’s failure to open was probably due to an excusable technical error, I further kindly request the Commission to once more submit both its Decision of 30 January and the attached documents in digital form, ensuring its accessibility.

Yours sincerely,
Maarten Hillebrandt

Secretariat General of the European Commission

Your message has been received by the Transparency Unit of the
Secretariat-General of the European Commission.
Requests for public access to documents are treated on the basis of
[1]Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents.
The Secretariat-General will reply to your request within 15 working days
upon registration of your request and will duly inform you of the
registration of the request (or of any additional information to be
provided in view of its registration and/or treatment).
 
 
L’unité «Transparence» du secrétariat général de la Commission européenne
a bien reçu votre message.
Les demandes d’accès du public aux documents sont traitées sur la base du
[2]règlement (CE) n° 1049/2001 du 30 mai 2001 relatif à l’accès du public
aux documents du Parlement européen, du Conseil et de la Commission.
Le secrétariat général répondra à votre demande dans un délai de 15 jours
ouvrables à compter de la date d’enregistrement de votre demande, et vous
informera de cet enregistrement (ou vous indiquera toute information
supplémentaire à fournir en vue de l'enregistrement et/ou du traitement de
votre demande).
 
 
Ihre Nachricht ist beim Referat „Transparenz“ des Generalsekretariats der
Europäischen Kommission eingegangen.
Anträge auf Zugang zu Dokumenten werden auf der Grundlage der
[3]Verordnung (EG) Nr. 1049/2001 vom 30. Mai 2001 über den Zugang der
Öffentlichkeit zu Dokumenten des Europäischen Parlaments, des Rates und
der Kommission behandelt.
Das Generalsekretariat beantwortet Ihre Anfrage innerhalb von
15 Arbeitstagen nach deren Registrierung und wird Sie über die
Registrierung Ihres Antrags (oder die Notwendigkeit weiterer Informationen
im Hinblick auf dessen Registrierung und/oder Bearbeitung) unterrichten.
 
 

References

Visible links
1. https://eur-lex.europa.eu/legal-content/...
2. https://eur-lex.europa.eu/legal-content/...
3. https://eur-lex.europa.eu/legal-content/...

Secretariat General of the European Commission

13 Attachments

Dear Mr Hillebrandt,
 
We acknowledge receipt of your message of 6 February 2020. Please note
that we are unaware of any technical issue preventing access to the
contents of the sent zip folder. We regret any inconvenience caused.
 
Given the number and size of the documents concerned, we will send them to
you again in separate batches. Please find attached the first batch of
documents.
 
Best regards,
 
ACCESS TO DOCUMENTS TEAM
 
European Commission
Secretariat-General
Unit C1 – Transparency, Document Management & Access to Documents
 
[1]HOW WE PROCESS PERSONAL DATA
 
 

show quoted sections

Secretariat General of the European Commission

10 Attachments

 

show quoted sections

Secretariat General of the European Commission

10 Attachments

 

show quoted sections

Maarten Hillebrandt

Concerning: Confirmatory Application in access to documents request filed with the European Commission, registered as GESTDEM 2019/7132, 2019/7134, 2019/7136, 2019/7137, 2019/7138

Applicant: Maarten Hillebrandt
Date reception of Commission Decision: 6 February 2020
Date confirmatory application: 12 February 2020

Addressed to: Secretariat General of the European Commission

Dear Ms Ferrier,

Thank you for your undated letter containing the European Commission’s decision in regard to the five requests for access to documents that I filed on 9 December 2019, pursuant to Regulation 1049/2001/EC.

Through this letter, I would like to appeal the Commission’s decision under the confirmatory application procedure.

For the purposes of this confirmatory application, I accept the Commission’s decision to limit, in certain places, the access to the 30 documents selected for consideration on various grounds under article 4 of Regulation 1049/2001/EC. Consequently, my appeal pertains exclusively to the Commission’s argumentation related to the supposed disproportionate administrative burden of my requests, as well as its handling of the search for fair solution. In this regard I should like to contest the Commission’s decision on the following grounds.

- Failure to ensure the widest possible access to documents
In the course of the search for a fair solution, I raised the point that the Commission’s failure to proactively disclose previous confirmatory application decisions amounts to a failure to ensure the widest possible access to documents as per Regulation 1049/2001/EC, article 1(a). Regrettably, the Commission did not engage with this argument. The type of documents that I requested is a Final Decision by the Commission, often containing detailed legal reasoning that is generally applicable to any member of the public seeking access. The requested document type is thus by nature uncontroversial, and of public interest, as it potentially sets precedents in the Commission’s interpretation of specific provisions of Regulation 1049/2001/EC. Furthermore, a confirmatory application is drafted in a highly formulaic manner, meaning that the elements of the document pertaining to data protection are easy to discern and protect. The non-publication of such documents is thus arbitrary and contradictory to the spirit and material purpose of Regulation 1049/2001/EC. This conclusion is further underlined by the fact that the Council already for many years routinely makes its confirmatory application decisions directly available on its register and with only few exceptions. The fact that the Council is able to do so, but the Commission fails to apply the same standard of openness, without further presenting evidence of possible exonerating conditions, amounts to an arbitrary interpretation of the principle of the widest access, as well as an inconsistent application of the access rules across the European institutions. This is relevant for the current access request, as a hypothetical Commission policy to (partially) proactively disclose its confirmatory application decisions would have made this request, and the administrative burden caused by our correspondence, superfluous. Had the Commission engaged with this argument, raised by me in the course of the exchange, this would have assuaged me to accept more limited direct access, as it would have ensured my legitimate right of access in the longer term, under conditions by which the Commission would not have been constrained by legally stipulated deadlines. Subsidiary to the argument raised above, I further note that the documents to which I sought access were not even cited on the Commission’s register, as is its legal duty under Regulation 1049/2001/EC, article 11(2).

- Merging of five independently filed requests for access to documents
As the Commission states in its decision, I filed 5 separate requests for access to documents (namely, pertaining to confirmatory application decisions covering 5 separate years). This was done deliberately, in order to facilitate the Commission’s most expeditious handling of the documents to which I sought access. For example, my requests would have allowed separate case handlers to work simultaneously on my requests, a distribution of administrative capacity which might have been more complicated had the entirety of documents requested been part of a single request. Furthermore, the case law, T-494/08, Ryanair v Commission, cited by the Commission, cannot be construed as excusing the Commission from searching for a solution that upholds the principle of the widest possible access to documents, the contents of which, except for the identities of requesters, is generally uncontroversial and clearly belonging in the public realm, in a way that was not the case in the requests filed by Ryanair. The Commission’s decision to merge my requests created a fait accompli that most probably negatively affected the volume of documents to which I eventually obtained access. A separate handling of the 5 individual requests might have led the Commission to decide to accept as admissible a larger subset of the requested documents.

- Insufficient substantiation of / unrealistic estimated workload
Apart from constituting an unacceptable reduction of the number of requested documents, the Commission’s proposal for a fair solution based on a cited disproportionate administrative burden was insufficiently substantiated. Indeed, as I clarified in my response to the Commission, the estimate seems quite unrealistic. However, as the Commission’s estimated handling time was scarcely elaborated, it remained impossible for me to verify. This contravenes principles of good administration, particularly the duty to duly justify decisions to the affected party, as well as the duty under Regulation 1049/2001 to justify, specifically and actually, any reductions in the public’s right to access. Here, I take the opportunity to reiterate my statement in response to the Commission’s initial estimate of handling time required, by which it appears to continue to stand in its final decision. I do so in order to underline why the Commission’s estimate is both insufficiently substantiated and lacking in credibility. On 28 December 2019, I wrote to the Commission:

“…the Commission offers a figure of the estimated workload entailed by 5 access to documents requests. It estimates the total workload at 3,800 days. This workload assessment, which amounts to 10.4 years if the Commission were working on my requests all days of the week including the weekend, seems both excessive and arbitrary. This is particularly so, since the Commission offers a very summary substantiation of this figure. According to a brief calculation, the workload assessment is based on the consideration of 3 related documents per day. [1] *[Footnote 1] As the Commission states, I requested 1,269 confirmatory application decisions across 5 separate requests. Based on the recent case cited by the Commission, each confirmatory application decision would come with an average of 9,125 annexes. This makes a total of 11,580 documents. Divided by 3,800 days, this makes up an assessment of 3.05 documents per day.”

For the sake of completeness, I add that in my counterproposal of 28 December 2019, I reduced the number of requested documents to 288, namely only actual Commission decisions without annexes, and only confirmatory application decisions drawn up in 2018.

In its final decision, the Commission merely adds in a footnote (footnote 8), that it reached the estimate of handling time on the basis of “similar initial applications”. Without offering further detail, this remains an unverifiable and therefore insufficiently substantiated justification.

Further undermining the credibility of the Commission’s estimate of the handling time of the documents that I requested, I note that while the Commission on 23 December 2019 suggested it could handle merely 10 documents within the set deadline, on 7 January 2020, after roughly one full working week had passed, this capacity had suddenly increased to 30 documents. It appears unlikely to me that the Commission’s administrative capacity increased threefold in the period between the two letters. Likewise, it appears equally unlikely that 30 is the largest number of documents that the Commission ever took into consideration upon an initial request/series of initial requests. A fortiori, I repeat in this regard that the document type to which I sought access was of a particularly regular and uncontroversial nature.

Finally, my experience with requesting similar types of documents with the Council is a decidedly different one. I refer, for example, to initial request with ref no 12/1568-ws/ns, filed with the Council Secretariat on 12 October 2012, in which I requested for 104 confirmatory application decisions not directly accessible on the Council register, as well as a similar initial request for 249 documents (ref no: 15/0656-mi/mf) of 19 March 2015. Both initial requests were accepted and handled without further questions and in a good spirit of cooperation. The fact that the Council, with a more limited administrative capacity, is able to handle document requests of similar volume as the one presently made, calls into question the Commission’s commitment to providing the widest possible access as is its legal duty under Regulation 1049/2001/EC.

- Incorrect interpretation of provisions pertaining to the setting of response deadlines
In the course of the search for a ‘fair solution’ as stipulated in Regulation 1049/2001/EC, article 6(3), the Commission incorrectly applied or interpreted provisions pertaining to the setting of deadlines. First of all, in its first proposal for a fair solution, submitted a day before Christmas, the Commission set a deadline of response to its offer of a reasonable alternative of 5 (working?) days. This deadline was not derived from any known regulation and thus appears arbitrary. At the very least, the Commission did not refer to the rule that would oblige me to respond within 5 days, nor did it explain from where it derived the right to unilaterally rephrase my requests for access should I fail to respond within the set timeframe. Clearly, in the absence of a valid procedure for it to do so, the Commission was not justified in unilaterally deciding to rephrase my access to documents requests as such, had I failed to respond within 5 days. Even if the Commission were to argue that the stated deadline was merely a non-binding suggestion, it inaccurately created the semblance of a consequential and irreversible threshold in the request procedure. This contravenes principles of good administration.

Furthermore, the Commission insists that the period of search for ‘fair solution’ should be included in the statutory deadline for responding. This assertion however is without legal ground and not consistent with previous Commission practice. As opposed to Regulation 1049/2001, article 7, which deals with the initial request phase and which does state time limits, article 6(3), which deals with the search for a reasonable solution, does not state any time limit. The fact that the legislator decided to place both procedures under different articles of Regulation 1049/2001 underlines the correctness of this reading. Moreover, a reading by which discussions in search of a fair solution would be counted under an institution’s handling time, would significantly undermine the applicant’s right of the widest possible access, which is the stated purpose of Regulation 1049/2001 (article 1). The institutions would be in a position to draw out exchanges by making manifestly unreasonable proposals for a settlement, as is the current situation, thereby reducing the amount of time left over for the de facto handling of the document request. Such a reading must thus be rejected, and the deadline of 15 + 15 working days must be construed as starting from the moment that a settlement has been reached. This, moreover, is in line with earlier Commission practice, e.g. in an earlier initial request for access to documents filed by me on 5 August 2019, in which the Commission did not register my access request until clarity was reached on its scope. Different treatment without justification, and with detrimental consequences for the applicant, would amount to arbitrary administration.

- Failure to engage with legitimate arguments brought against the Commission’s suggestion to excessively reduce the substance of the initial requests.
Finally, I note that this confirmatory application repeats various arguments raised during the exchange in search for a fair solution. In my view, these arguments are significant in that they could have led the Commission’s proposal for a fair solution to be called into question, and could have led the Commission to go beyond the access provided through its Final Decision. The Commissions failure to engage with these arguments during the search for a fair solution falls short of principles of good administration, such as the right to be heard and the institutions’ duty to sufficiently motivate their decisions (CFR, art. 41(2), first and third indent).

In view of the above arguments, I request the Commission to:
- Review its undated Final Decision received by me on 6 February and grant access to the remaining 258 requested confirmatory application decisions drawn up by the Commission in 2018.
- Revise its practice of proactive publication of Confirmatory Application decisions by making, such decisions, future and past, directly downloadable, or at the very minimum visible, through its online register at the earliest possible moment, as per Regulation 1049/2001/EC, articles 11 and 12.

A full history of my request and all correspondence is available on the Internet at this address: https://www.asktheeu.org/en/request/all_...

Yours sincerely,
Maarten Hillebrandt

Secretariat General of the European Commission

Your message has been received by the Transparency Unit of the
Secretariat-General of the European Commission.
Requests for public access to documents are treated on the basis of
[1]Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents.
The Secretariat-General will reply to your request within 15 working days
upon registration of your request and will duly inform you of the
registration of the request (or of any additional information to be
provided in view of its registration and/or treatment).
 
 
L’unité «Transparence» du secrétariat général de la Commission européenne
a bien reçu votre message.
Les demandes d’accès du public aux documents sont traitées sur la base du
[2]règlement (CE) n° 1049/2001 du 30 mai 2001 relatif à l’accès du public
aux documents du Parlement européen, du Conseil et de la Commission.
Le secrétariat général répondra à votre demande dans un délai de 15 jours
ouvrables à compter de la date d’enregistrement de votre demande, et vous
informera de cet enregistrement (ou vous indiquera toute information
supplémentaire à fournir en vue de l'enregistrement et/ou du traitement de
votre demande).
 
 
Ihre Nachricht ist beim Referat „Transparenz“ des Generalsekretariats der
Europäischen Kommission eingegangen.
Anträge auf Zugang zu Dokumenten werden auf der Grundlage der
[3]Verordnung (EG) Nr. 1049/2001 vom 30. Mai 2001 über den Zugang der
Öffentlichkeit zu Dokumenten des Europäischen Parlaments, des Rates und
der Kommission behandelt.
Das Generalsekretariat beantwortet Ihre Anfrage innerhalb von
15 Arbeitstagen nach deren Registrierung und wird Sie über die
Registrierung Ihres Antrags (oder die Notwendigkeit weiterer Informationen
im Hinblick auf dessen Registrierung und/oder Bearbeitung) unterrichten.
 
 

References

Visible links
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2. https://eur-lex.europa.eu/legal-content/...
3. https://eur-lex.europa.eu/legal-content/...

ve_sg.accessdoc (SG), Secretariat General of the European Commission

[1]Ares(2020)929368 - RE: Internal review of access to documents request -
All Commission replies to confirmatory applications in 2018

Sent by ve_sg.accessdoc (SG) <[DG SG request email]>. All responses have
to be sent to this email address.
Envoyé par ve_sg.accessdoc (SG) <[DG SG request email]>. Toutes les
réponses doivent être effectuées à cette adresse électronique.

Dear Sir ,

Thank you for your email dated 12/02/2020 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 the
Secretariat general in reply to your initial application GESTDEM 2019/7132
- 2019/7134 - 2019/7136 - 2019/7137 & 2019/7138.

We hereby acknowledge receipt of your confirmatory application for access
to documents which was registered on 13/02/2020 (Ares(2020)928714).

Your application will be handled within 15 working days (05/03/2020). 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. Thank you for providing your contact phone number, 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 documents team (RC)
SG.C.1
Transparency

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