EC2201/2003 (BIIa - Brussels IIa) Review - Details on external consultants who prepared 28 country specific reports

The request was refused by Justice and Consumers.

Dear Justice and Consumers,

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:

When my request:
http://www.asktheeu.org/en/request/bruss... was rejected I got to know:
"These field studies were prepared by external experts on request of an external consultant who had been contracted by the Commission in the framework of an Impact Assessment study for the review of Brussels Ha Regulation (Regulation EC 2201/2003)."

Kindly let me know:
- if it is true that the external consultant has hired these external experts who made the 28 country specific reports ?
- how theses external experts were hired (tender) ?
- who is paying the external experts
- expenses for these experts ?
- the individual names of all these external experts and for whom they work ?
- the contract details ?
- was there a tender and where ?
- to whom the documents they use and they prepare belong ?
- how the EU commission has access to their working documents ?

To avoid delays give the most easy available information asap and the other information later.

Yours faithfully,

Klaus Zinser

Sent request to Justice and Consumers again.

Justice and Consumers

Dear Sir,

 

Thank you for your e-mail dated 10/02/2015. We hereby acknowledge receipt
of your application for access to documents, which is identical to your
request dated 30/01/2015 and registered on 02/02/2015 under reference
number GestDem 2015/0667. Therefore, please be informed that both requests
will be treated as one under the same GestDem 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
23/02/2015. In case this time limit needs to be extended, you will be
informed in due course.

 

Yours faithfully,

Just Access to Documents Team

 

Klaus Zinser left an annotation ()

On 26th February 2015 a letter was received (original will follow). referring to this and another request it was written:

"Following an examination ofthe documents requested under the provisions ofRegulation (EC) No 1049/2001 regarding public access to documents I have come to the conclusion that they may be partially disclosed. You will find attached the terms of reference prepared by the Commission to request the study on the impact assessment for Brussels Ha Regulation under the Framework Contract "Impact Assessment for the assignment of the Monitoring and Evaluation ofcommunication activities".

However, the disclosure of the contract signed with the external contractor which contains infonnation with regard to the selection procedure of the experts by the contractor, their remuneration and contract as well as the methodology of their work is prevented by exception to the right of access laid down in Article 4 of this Regulation. The document which you seek to obtain contains commercially sensitive business infonnation of the company that submitted the offer to carry out the study."

As the so called 'Terms of reference' do not answer this FOI request a legal complaint, the so called confirmatory application was sent by email.

Dear Justice and Consumers,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Justice and Consumers's handling of my FOI request 'EC2201/2003 (BIIa - Brussels IIa) Review - Details on external consultants who prepared 28 country specific reports'.

I have already sent the so called 'confirmatory application' with more details about my complaint.

A full history of my FOI request and all correspondence is available on the Internet at this address: http://www.asktheeu.org/en/request/ec220...

Yours faithfully,

Klaus Zinser

Klaus Zinser left an annotation ()

Today I Klaus Zinser who has made this request, I have received a direct email (which is added here to keep the whole process transparent):

-----------RECEIVED BY EMAIL ON 2nd March 2015 -----------
Dear Mr Zinser,

Thank you for your email dated 27/02/2015, registered on 02/03/2015. I hereby acknowledge receipt of your confirmatory application for access to documents (ref.: Ares(2015)887597 – GESTDEM 2015/662 and 667).

In accordance with Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, you will receive a response to your request within 15 working days (23/03/2015).

In case this deadline needs to be extended, you will be informed in due course.

Best regards,

NAME REMOVED
Access to Documents
European Commission
Secretariat General
Unit SG.B4 – Transparency

Klaus Zinser,

1 Attachment

[ Email has no body, please see attachments ]

Klaus Zinser left an annotation ()

Attached the reply from the European Commission, Mrs Michou which was received on 26th February 2015 but did not answer the question.

Institution European Commission DG JUST
—> Directorate-General for Justice and Consumers Dir A
-—> Civil justice MICHOU Paraskevi

http://europa.eu/whoiswho/public/index.c...

This references to both FOI's:

GestDem 0662: http://www.asktheeu.org/en/request/revie... and
GestDem 0667: http://www.asktheeu.org/en/request/ec220...

Therefore an internal review was requested on 26th February 2015 after this paper has been received.

Klaus Zinser,

1 Attachment

[ Email has no body, please see attachments ]

Klaus Zinser left an annotation ()

The internal review was done and access to documents was rejected.

Attached the reply from the European Commission, Catherine Da, Secretariat General.

Institution European Commission SG — Secretariat-General DAY Catherine

http://europa.eu/whoiswho/public/index.c...

This references to both FOI's:

GestDem 0662: http://www.asktheeu.org/en/request/revie... and
GestDem 0667: http://www.asktheeu.org/en/request/ec220...

The internal review, requested on 26th February 2015 was rejected on 15th April 2015.

-----
Following this review, I regret to inform you that I have to confirm the initial decision of the DG JUST to refuse access to the Proposal on the Study on the assessment of the Regulation (EC) No 2201/2003 and the policy options for its amendment, based on the reasons set out below.
2.1 Protection of the on-going decision-making process
Article 4(3), first subparagraph of Regulation 1049/2001 provides that:
Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.
The work on the Study on the impact assessment of the Brussels IIa Regulation under the Framework contract "Impact Assessment for the assignment of the Monitoring and Evaluation of communication activities" is still on-going. The aim of the study is to evaluate the application of the Brussels Ha Regulation and to assess its effects in terms of its relevance, coherence, effectiveness, efficiency and EU added value and utility, recommend possible amendments of the Regulation and to suggest and substantiate the choice of the preferred policy option.
In 2014 the Commission, before deciding on a possible future review of the currently applicable Brussels Ha Regulation, consulted stakeholders, individuals, legal practitioners, academics, courts, national authorities and Member States, gave due consideration to all the views collected during a public consultation3, and published its final results later that year4. In this regard, I note that also your opinion submitted during this public consultation will be taken into account in the current review process.
Indeed, it must be underlined that when drafting legislative proposals, the Commission takes into account all conflicting interests with a view to adopting a balanced proposal in the public interest5.
In this sense, the study is a document designed to help structure the preparation of an impact assessment and a Commission legislative proposal aiming at developing a specific EU policy. Policy choices contained in the future legislative proposal itself are supported by the content of this document.
Disclosure of the study at this very early stage would seriously undermine the on-going decision-making process of the Commission. In particular, it would prejudice the institution's margin of manoeuvre and severely reduce its capacity to contribute to reaching compromises.
An atmosphere of trust needs to be protected in order to allow maximum consent between the contractor, experts and services involved. Access to the document requested would trigger a risk of external pressure by third parties, which would hinder the delicate long-term process. In this regard it is to be noted that, according to Article 17(1) TEU, [t]he Commission shall promote the general interest of the Union and take appropriate initiatives to that end. Furthermore, according to Article 17(3) TEU, [ijn carrying out its responsibilities, the Commission shall be completely independent.
However, I would like to point out that with the aim of bringing the decision-making process closer to the citizen and fostering transparency, you can find a number of documents available online which support the ongoing reflections6. addition, all other documents related to future impact assessments launched by the Commission will be made public at the Impact Assessment Board's website on Europa once the policy proposal is adopted by the College (http://ec.europa.eu/sroart- regulation/impact/index en.htm).
On the basis of the above, access to the requested document has to be refused on the grounds of Article 4(3), first subparagraph, of Regulation 1049/2001 since the decision- making process is at a very early and delicate stage, and release of the document would seriously undermine that decision-making process.
2.2. Protection of commercial interests
Article 4(2), first indent, of Regulation 1049/2001 provides that [tjhe 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.
The study to which you seek to obtain access reflects the specific know-how of the successful contractor who submitted the proposal. More specifically, it explains in detail the methodology to be followed, the assessment criteria of experts, their costs, the work plan and the corresponding, detailed financial proposal and total budget.
Disclosure of this information would undermine the commercial interests protected by Article 4(2), first indent of Regulation 1049/2001, as it would reveal sensitive details about the organisation and way of working of the contractor which could be used by competitors to the disadvantage of the competitive position of the company concerned.
It appears useful to point out, as established by the General Court in Cosepuri,7 that the confidentiality of such information is integral to the objective of EU rules on public procurement, which is based on undistorted competition. In order to attain that objective, it is important that the contracting authorities do not release information relating to contract award procedures which could be used to distort competition, whether in an ongoing procurement procedure or in subsequent procedures. Furthermore, both by their nature and according to the scheme of EU legislation in that field, contract award procedures are founded on a relationship of trust between the contracting authorities and participating economic operators. Those operators must be able to communicate any relevant information to the contracting authorities in the procurement process without fear that the authorities will communicate to third parties items of information whose disclosure could be damaging to them...
2.3. Protection of privacy and integrity of individual
Article 4(1)(b) of Regulation 1049/2001 provides that [t]he institutions shall refuse access to a document where disclosure would undermine the protection of privacy and the integrity of the individual in particular in accordance with Community legislation regarding the protection of personal data.
The document requested contains a preliminary list of legal experts chosen by the contractor and a list of the members of the project team, in particular their names, country of origin, organisation they work for or represent, years of professional experience, languages spoken, CV etc. These undoubtedly constitute personal data in the meaning of Article 2(a) of Regulation (EC) No 45/20018 (the Data Protection Regulation). Article 2(a) of Data Protection Regulation provides that "personal data" shall mean any information relating to an identified or identifiable person [...].
The Court of Justice confirmed in case C-465/00 (Rechnungshof)9, there is no reason of principle to justify excluding activities of a professional [...] nature from the notion of "private life".
According to Article 8(b) of the Data Protection Regulation, which is fully applicable in this case, personal data shall only be transferred to recipients if the recipient establishes the necessity of having the data transferred and if there is no reason to assume that the data subject's legitimate interests might be prejudiced.10 These two conditions are cumulative.11
Moreover, based on the Commission's own assessment, disclosure of these data would carry a real and non-hypothetical risk of harming the privacy and integrity of the individuals concerned, as this would expose the latter to undue external pressure, criticism and unsolicited contacts.
Having regard to the above, I have to conclude that the exception under Article 4(1)(b) of Regulation 1049/2001 is applicable to the personal data appearing in the document, and that access thereto has to be refused on this basis.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2), first indent and 4(3), first subparagraph of Regulation 1049/2001 must be waived if there is an overriding public interest in disclosure. Such an interest must, firstly, be public and, secondly, outweigh the harm caused by disclosure.
In your confirmatory application you do not include any arguments demonstrating the existence of an overriding public interest in disclosure of the study requested that would outweigh the protection of the commercial interests of the contractor and of the on-going decision-making process. Nor have I been able to identify any public interest in the disclosure of the document requested. On the contrary, the reasoning set out above demonstrates that the public interest is better served in this case by ensuring that the document requested is not disclosed.
Furthermore, I must underline that your application for access to documents is being treated under Regulation 1049/2001. This Regulation concerns the right to have public access to European Parliament, Council and Commission documents. Indeed, if access is granted to a document under Regulation 1049/2001, this document becomes accessible to the public at large (erga omneś). Therefore, I regret to inform you that any possible individual interest in obtaining the document in question cannot be taken into consideration for the purpose of deciding on your request for access
Indeed, disclosure of the document requested would undermine the on-going decision- making process at this early stage and therefore, hinder the possibility of achieving the best compromise in the interest of the citizens.
Consequently, I consider that in this case there is no overriding public interest that would outweigh the interest in safeguarding the decision-making process protected by Article 4(3), first subparagraph of Regulation 1049/2001.
4. PARTIAL ACCESS
I have also considered the possibility of granting partial access to the document in accordance with Article 4(6) of Regulation (EC) No 1049/2001. However, after a careful examination, I must conclude that partial access is not possible as the requested document is covered in its entirety by the exceptions provided for in in Articles 4(2), first indent and 4(3) of Regulation (EC) No 1049/2001. MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress that are available against this decision, that is, judicial proceedings and complaints to the Ombudsman under the conditions specified respectively in Articles 263 and 228 of the Treaty on the Functioning of the European Union.
Yours sincerely, Catherine Day

-> This work is already finished. Nevertheless, the public society does not get to know what going with the review of EU Law EC2201/2003 (Brussels Iia). The internal review was done and access to documents was rejected.

Suppose there are the wrong starting points, it is very realistic that there will be another EU law - as the existing one - who does not work. If the law would work no review would be necessary.