Dear Madam, Sir,

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 documents discussing the implications of ECJ ruling C‑693/18 (on the interpretation of regulation 715/2007), including but not limited to:
- All e-mails between the European Commission and national type approval authorities / market surveillance authorities about the implications on previously given (partial) type approvals
- All presentations by the Commission or member states (including national authorities)
- All minutes of meetings on this subject
- All internal Commission notes on the ruling

The requested time frame is from the date of the ruling 17 december 2020, to the present.

Sincerely
Peter Teffer

postal address:
Peter Teffer
Ekko Voorkamer
Bemuurde Weerd WZ 3
3513 BH Utrecht
The Netherlands

GROW-ACCES-DOCUMENTS@ec.europa.eu, Internal Market, Industry, Entrepreneurship and SMEs

1 Attachment

Dear Sir,
 
Thank you for your e-mail of 25/05/2021. We hereby acknowledge receipt of
your application for access to documents, which was registered on
26/05/2021 under reference number GESTDEM 2021/3432.
 
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
16/06/2021. In case this time limit needs to be extended, you will be
informed in due course.
 
You have lodged your application via a private third-party 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.
 
Please note that the private third party running the website is
responsible and accountable for the processing of your personal data via
that website, and not the Commission. For further information on your
rights, please refer to the third party’s privacy policy.
 
We understand that the third party running the AsktheEU.org website
usually publishes the content of applicants’ correspondence with the
Commission on that website. This includes the personal data that you may
have communicated to the Commission (e.g. your private postal address).
 
Similarly, the third party publishes on that website any reply that the
Commission will send to the email address of the applicants generated by
the AsktheEU.org website.
 
If you do not wish that your correspondence with the Commission is
published on a private third-party website such as AsktheEU.org, you can
provide us with an alternative, private e-mail address for further
correspondence.  In that case, the Commission will send all future
electronic correspondence addressed to you only to that private address,
and it will use only that private address to reply to your request. You
should still remain responsible to inform the private third-party website
about this change of how you wish to communicate with, and receive a reply
from, the Commission.
 
For information on how we process your personal data visit our page
Privacy statement – access to documents.
 
Yours faithfully,
 
 
DG GROW – Access to documents team
 
European Commission
Directorate-General for Internal Market, Industry, Entrepreneurship and
SMEs
DG  GROW/B1 – Planning and Briefings
 
 
 

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GROW-ACCES-DOCUMENTS@ec.europa.eu, Internal Market, Industry, Entrepreneurship and SMEs

1 Attachment

Dear Mr Teffer,

We refer to your request for access to documents, registered on 26/05/2021
under the above mentioned reference number.

Your application is currently being handled. However, we will not be in a
position to complete the handling of your application within the time
limit of 15 working days, which expires on 16/06/2021.

An extended time limit is needed as part of the documents requested
originate from third parties which have been consulted.

Therefore, we have to extend the time limit with 15 working days in
accordance with Article 7(3) of Regulation (EC) No 1049/2001 regarding
public access to documents. The new time limit expires on 07/07/2021.

We apologize for this delay and for any inconvenience this may cause.

Kind regards,

DG GROW – Access to documents team

 

[1]cid:479385507@17082012-2045

European Commission
Directorate-General for Internal Market, Industry, Entrepreneurship and
SMEs
DG  GROW/B1 – Planning and Briefings

 

 

 

 

References

Visible links

Dear Madam, Sir,

I refer to my access to documents request registered on 26/05/2021 under reference number GESTDEM 2021/3432, and your message from 14/06/2021 announcing the necessity for an extended deadline to reply.

This is a friendly reminder that this new time limit expires on 07/07/2021, which is tomorrow.

Warm greetings,
Peter Teffer

GROW-ACCES-DOCUMENTS@ec.europa.eu, Internal Market, Industry, Entrepreneurship and SMEs

Dear Mr Teffer,

Many thanks for your email.

We regret to inform you that the reply to your request could not be finalised today as the consultations with the Member States are still ongoing. Therefore, we are not in a position to complete the handling of your application within the extended time limit of 15 working days, which expires today. Please be reassured that we are doing our best to be able to send you the reply as soon as possible.

We apologise for this additional delay and for any inconvenience this may cause.

Kind regards,

DG GROW – Access to documents team

European Commission
Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs
DG  GROW/B1 – Planning and Briefings

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Dear Madam, Sir,

I refer to my access to documents request registered on 26/05/2021 under reference number GESTDEM 2021/3432, which could not be finalised within the legal time limit because of ongoing consultations with the member states.

In the past, when certain member states were slow to respond to consultations, DG GROW decided to provide access to documents in batches. That way, access to information is not delayed for the entirety of the documents purely because one or a number of member states is slow.

May I suggest that you do the same in this case: provide access to the documents regarding the member states with which consultations have been concluded now, and then provide access to the rest of the documents once the consultations with the remaining member states is concluded? Better to delay access to only part of the documents than to delay access to all the documents.

Sincerely,
Peter Teffer

Dear Madam, Sir,

I refer to my access to documents request registered on 26/05/2021 under reference number GESTDEM 2021/3432, which could not be finalised within the legal time limit because of ongoing consultations with the member states.

I made a suggestion last week, to which I have not yet received a reply:

In the past, when certain member states were slow to respond to consultations, DG GROW decided to provide access to documents in batches. That way, access to information is not delayed for the entirety of the documents purely because one or a number of member states is slow.

May I suggest that you do the same in this case: provide access to the documents regarding the member states with which consultations have been concluded now, and then provide access to the rest of the documents once the consultations with the remaining member states is concluded? Better to delay access to only part of the documents than to delay access to all the documents.

Sincerely,
Peter Teffer

GROW-ACCES-DOCUMENTS@ec.europa.eu, Internal Market, Industry, Entrepreneurship and SMEs

Dear Mr Teffer,

Many thanks for your email. I would like to reassure you that we are indeed preparing a reply with a first batch of documents that you will receive shortly after the validation chain has been completed.

We apologise for the delay and thank you for your understanding.

Best regards,

DG GROW – Access to documents team

European Commission
Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs
DG  GROW/B1 – Planning and Briefings

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Dear Madam, Sir,

Thanks for the update, and the cooperation.

best
Peter

GROW-I2@ec.europa.eu, Internal Market, Industry, Entrepreneurship and SMEs

4 Attachments

Dear Mr Teffer,

 

referring to your access to documents request GestDem No. 2021/3432,
please find enclosed the reply letter, document register and related
documents. We apologise for the delay in replying!

 

This is the first reply. You will receive a follow-up reply as soon as the
ongoing consultations with the Member States have been concluded.

 

Best regards,

 

European Commission
Directorate-General for Internal Market, Industry, Entrepreneurship and
SMEs
Mobility

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Dear Madam, Sir,

Thank you for the first batch of documents. I hope the Commission will be able to conclude consultations with the member states shortly. Do remind the member states that they are causing the Commission to fail to reply within the prescribed time-limit.

Sincerely
Peter Teffer

GROW-I2@ec.europa.eu, Internal Market, Industry, Entrepreneurship and SMEs

4 Attachments

Dear Mr Teffer,

 

please find enclosed a second reply letter, document register and related
documents.

 

For two documents, the third-party consultations are still ongoing. You
will receive a follow-up reply as soon as the ongoing consultations have
been concluded. We apologise for the delay.

 

Best regards,

 

European Commission
Directorate-General for Internal Market, Industry, Entrepreneurship and
SMEs
Mobility

 

From: GROW I2
Sent: Friday, July 16, 2021 2:15 PM
To: 'Peter' <[FOI #9558 email]>
Cc: GROW ACCES DOCUMENTS <[DG GROW request email]>
Subject: RE: access to documents request - ECJ ruling C-693/18 - GestDem
No. 2021/3432 - First reply

 

Dear Mr Teffer,

 

referring to your access to documents request GestDem No. 2021/3432,
please find enclosed the reply letter, document register and related
documents. We apologise for the delay in replying!

 

This is the first reply. You will receive a follow-up reply as soon as the
ongoing consultations with the Member States have been concluded.

 

Best regards,

 

European Commission
Directorate-General for Internal Market, Industry, Entrepreneurship and
SMEs
Mobility

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GROW-I2@ec.europa.eu, Internal Market, Industry, Entrepreneurship and SMEs

2 Attachments

Dear Mr Teffer,

 

please find enclosed a third reply letter.

 

Best regards,

 

European Commission
Directorate-General for Internal Market, Industry, Entrepreneurship and
SMEs
Mobility

 

From: GROW I2
Sent: Thursday, July 22, 2021 6:14 PM
To: 'Peter' <[FOI #9558 email]>
Cc: GROW ACCES DOCUMENTS <[DG GROW request email]>
Subject: RE: access to documents request - ECJ ruling C-693/18 - GestDem
No. 2021/3432 - Second reply

 

Dear Mr Teffer,

 

please find enclosed a second reply letter, document register and related
documents.

 

For two documents, the third-party consultations are still ongoing. You
will receive a follow-up reply as soon as the ongoing consultations have
been concluded. We apologise for the delay.

 

Best regards,

 

European Commission
Directorate-General for Internal Market, Industry, Entrepreneurship and
SMEs
Mobility

 

From: GROW I2
Sent: Friday, July 16, 2021 2:15 PM
To: 'Peter' <[1][FOI #9558 email]>
Cc: GROW ACCES DOCUMENTS <[2][DG GROW request email]>
Subject: RE: access to documents request - ECJ ruling C-693/18 - GestDem
No. 2021/3432 - First reply

 

Dear Mr Teffer,

 

referring to your access to documents request GestDem No. 2021/3432,
please find enclosed the reply letter, document register and related
documents. We apologise for the delay in replying!

 

This is the first reply. You will receive a follow-up reply as soon as the
ongoing consultations with the Member States have been concluded.

 

Best regards,

 

European Commission
Directorate-General for Internal Market, Industry, Entrepreneurship and
SMEs
Mobility

show quoted sections

Dear Madam, Sir,

I refer to my access to documents request registered on 26/05/2021 under reference number GESTDEM 2021/3432. I would like to express my appreciation to DG GROW for the cooperative spirit and accepting my suggestion to treat disclosure in batches because of the delays in consultations with member states.

Nevertheless, I would like to ask you to please pass this on to the person who reviews confirmatory applications: I am filing the following confirmatory application with regards to access to documents request GESTDEM 2021/3432.

The European Commission has decided to deny disclosure of the two documents ‘ECJ ruling and Commission review request’ and ‘FW: ECJ ruling and Commission review request’, which seem to have the same reference number (Ares(2021)4264687).

According to the third reply to my request, dated 28 July 2021, the Commission relies fully on the claim by one member state – Germany – that disclosure of the documents would seriously undermine the institution's decision-making process. The Commission quotes the member state’s reasons, but provides no additional reasoning.

Germany stated that disclosure of the documents would seriously undermine the institution's decision-making process. Case-law has determined that refusal of disclosure with a reference to article 4.3 of Regulation 1049/2001 should involve a threat that is ‘reasonably foreseeable and not purely hypothetical’ and should be ‘specific and actual’. I do not believe that Germany’s motivation sufficiently shows a clear and concrete risk that the Commission’s decision-making process would be undermined.

Germany has constructed its argument around an upcoming ‘legal opinion of the European Commission’ and that if the views of the type approval authorities as expressed in the undisclosed documents were published, this could ‘lead to an attempt to influence the decision-making process of the competent bodies of the European Commission.’

Not only is this argument hypothetical, it also hinges on a fiction that the ‘differing understanding of the scope of the testing carried out by the Member State type-approval authorities and of the interpretation of Article 5 (2) of Regulation (EC) No 715/2007’ are not already public.

Germany actually acknowledges the existence of these ‘divergences’ by stating them in its motivation. Moreover, the German type approval authority KBA has published several statements in which it laid out its interpretation of Article 5 (2) of Regulation (EC) No 715/2007, and the Court of Justice ruling on defeat devices.

See:
Pressemitteilung Nr. 30/2020 - Stellungnahme des Kraftfahrt-Bundesamtes zum EuGH-Urteil zu Abschalteinrichtungen https://www.kba.de/DE/Presse/Pressemitte...
7. April 2021 - Stellungnahme des Kraftfahrt-Bundesamtes zum EuGH-Urteil zu Abschalteinrichtungen https://www.kba.de/DE/Marktueberwachung/...

In these public statements, KBA says, in summary, that it sees the Court ruling as a confirmation of its practice since 2015, and that no review of previously granted emissions approvals is necessary.

Meanwhile, in contrast, the Dutch type approval authority RDW is reviewing all previously granted emissions approvals. The responsible state secretary S. van Veldhoven-van der Meer said in a public statement, sent to the Dutch parliament, that in the Dutch government's view the Court ruling has created a new legal framework ‘that is different from the framework previously applied by the European type approval authorities’. See https://www.tweedekamer.nl/kamerstukken/...

Furthermore, one of the documents released by the Commission in the second batch (2021-03-30-From RO to EC-Annex 1_Redacted) showed that the Romanian type approval has carried out a new analysis of a previously granted type approval to determine if it was impacted by the judgment of case C-693/18.

In other words, it is no secret anymore that European type approval authorities have different opinions about how to interpret the Court ruling. If there is a possibility that there will be an attempt to influence the decision-making process, then this possibility is already established by the public statements by the KBA and the Dutch state secretary. Publication of the requested documents would not increase that possibility. There is therefore no likelihood of disclosure seriously undermining the institution's decision-making process.

Regardless of the above, let me say a few words about the German ‘fear’ of a potential ‘attempt to influence the decision-making process of the competent bodies of the European Commission’.

Attempts to influence the Commission happen all the time, through lobbying by car companies and environmental groups, by debates in the European Parliament, and by contributions from member states.

The mere fact that some may *attempt* to influence the decision-making process of the competent bodies of the European Commission, does not automatically translate into an actual situation which seriously undermines the institution's decision-making process. It is a ridiculous fiction to assume that debates will never be the subject of an attempt to influence that debate, but the existence of such attempts does not in itself endanger the protection of an unbiased and free exchange of views.

Even if it is the case that publication would seriously undermine the institution's decision-making process – something which I believe in the paragraphs above I have refuted – I believe an overriding public interest exists.

As state secretary S. van Veldhoven-van der Meer stressed in the above-cited letter to the Dutch parliament, it is important that there is a level playing field among type approval authorities, and a uniform interpretation of Article 5 (2) of Regulation (EC) No 715/2007.

This is stated in the very first recital of Regulation (EC) No 715/2007: ‘The internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital must be ensured. To that end a comprehensive Community type approval system for motor vehicles, established by Council Directive 70/156/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the type approval of motor vehicles and their trailers, is in place. The technical requirements for the type approval of motor vehicles with regard to emissions should therefore be harmonised to avoid requirements that differ from one Member State to another, and to ensure a high level of environmental protection.’ The Court of Justice confirmed this in the ruling.

A different interpretation of Article 5 (2) means the difference between allowing a defeat device in a vehicle or not – which in turn possibly means the difference between the vehicle emitting an acceptable or dangerous level of the toxic NOx gases which are regulated by Regulation (EC) No 715/2007.

Citizens should be able to see the different interpretation of the ruling in case C-693/18 the type approval authorities have adopted, so that they will know which authorities are possibly putting air quality in danger. There is thus an overriding public interest that citizens are able to access the documents.

This public interest is even strengthened by the fact that the information relates to emissions, which is covered by the Aarhus Convention. In particular, the interpretation of Article 5 (2) of Regulation (EC) No 715/2007 determines in part the level of emissions that will be released into the environment: a strict interpretation, by for example not allowing defeat devices, would lead to a lower level of emissions by cars than a more lenient interpretation, which allows the use of defeat device that limit the emission control efficiency during real driving conditions.

The documents thus relate to ‘foreseeable emissions [...] under normal or realistic conditions of use of that product or substance corresponding to those under which the authorisation to place the product in question on the market is granted and which prevail in the area where that product is intended for use’ (Court jurisprudence).

Sincerely
Peter Teffer

SG ACCES DOCUMENTS, Internal Market, Industry, Entrepreneurship and SMEs

Dear Sir,

Thank you for your email dated 30/07/2021 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
GROW in reply to your initial application GESTDEM 2021/3432.

We hereby acknowledge receipt of your confirmatory application for access
to documents which was registered on 31/07/2021 (Ares(2021)4898449).

Your application will be handled within 15 working days (23/08/2021). 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 (cr)
SG.C.1
Transparency

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SG ACCES DOCUMENTS, Internal Market, Industry, Entrepreneurship and SMEs

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Link: [1]File-List
Link: [2]Edit-Time-Data
Link: [3]themeData
Link: [4]colorSchemeMapping

Dear Mr Teffer,

We refer to your email of  30 July 2021, registered on 21 July 2021, by
which you submitted a confirmatory application in accordance with Article
7(2) of Regulation (EC) No 1049/2001 regarding public access to European
Parliament, Council and Commission documents[5]^[1] ("Regulation (EC) No
1049/2001").

 

Your confirmatory application is currently being handled. Unfortunately,
we have not yet been able to gather all the elements needed to carry out a
full analysis of your request and to take a final decision. Therefore, we
are not in a position to reply to your confirmatory request within the
prescribed time limit which expires on 23 August 2021. The new deadline
expires on 13 September 2021.

 

We apologise for this delay and for any inconvenience this may cause but
we would like to assure you that we will do our utmost to provide you with
a reply as soon as possible.

 

Yours sincerely,

María OLIVÁN AVILÉS
Head of Unit

[6]cid:image001.gif@01D13362.41D673C0

European Commission

Secretariat General

Unit C.1 (Transparency, Document Management and Access to Documents)

 

 

------------------------

[7][1]               Official Journal L 145 of 31.5.2001, p. 43.

References

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5. file:///tmp/foiextract20210825-2457-1u6y0lh#_ftn1
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SG ACCES DOCUMENTS, Internal Market, Industry, Entrepreneurship and SMEs

1 Attachment

Link: [1]File-List
Link: [2]Edit-Time-Data
Link: [3]themeData
Link: [4]colorSchemeMapping

[5]Your confirmatory application for access to documents under Regulation
(EC) No 1049/2001 - GESTDEM 2021/3432 - 2nd holding letter -
Ares(2021)5596404  (Please use this link only if you are an Ares user –
Svp, utilisez ce lien exclusivement si vous êtes un(e) utilisateur d’Ares)

Dear Mr Teffer,

We refer to your email of  30 July 2021, registered on the next day, by
which you submitted a confirmatory application in accordance with Article
7(2) of Regulation (EC) No 1049/2001 regarding public access to European
Parliament, Council and Commission documents[6]^[1] ("Regulation (EC) No
1049/2001"). We also refer to our holding letter of 23 August 2021.

 

Your confirmatory application is currently being handled. Unfortunately,
we still have not been able to gather all the elements needed to carry out
a full analysis of your request and to take a final decision, as the
internal and external consultations in relation to your request are still
ongoing.

 

Therefore, we are not in a position to reply to your confirmatory request
within the prescribed time limit which expires on 13 September 2021.

 

We apologise for this delay and for any inconvenience this may cause but
we would like to assure you that we will do our utmost to provide you with
a reply as soon as possible.

 

Thank you for your understanding.

 

Yours sincerely,

 

María OLIVÁN AVILÉS
Head of Unit

[7]cid:image001.gif@01D13362.41D673C0

European Commission

Secretariat General

SG.C.1 (Transparency, Document Management and Access to Documents)

------------------------

[8][1]               Official Journal L 145 of 31.5.2001, p. 43.

References

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3. file:///tmp/~~themedata~~
4. file:///tmp/~~colorschememapping~~
5. https://webgate.ec.testa.eu/Ares/documen...
6. file:///tmp/foiextract20210913-1037-tmgfn8#_ftn1
8. file:///tmp/foiextract20210913-1037-tmgfn8#_ftnref1

Dear Madam, Sir,

I refer to my confirmatory application registered on 31/07/2021 (Ares(2021)4898449). The final deadline by which I should have received a reply expired on 13 September 2021, as you acknowledged in your message from that day.

Regulation 1049/2001 allows for one extension of 15 working days, but only in "exceptional cases". You have given no indication of my case being exceptional. Regardless, even if this case were exceptional, there is no legal basis for further delay beyond 2 x 15 working days.

Not only is there no legal basis for this delay, it is also in direct opposition with the Commission's own rules. President Von der Leyen wrote in her Communication to the Commission titled 'The Working Methods of the European Commission' (dated 1 December 2019, P(2019) 2): "Access to documents is governed by Regulation 1049/2001. Members of the Commission and services should respect the deadlines set by this regulation at all times."

Can you explain why this clear political directive from President Von der Leyen is being ignored by the Secretariat-General?

Sincerely
Peter Teffer

Sg-Acc-Doc@ec.europa.eu, Internal Market, Industry, Entrepreneurship and SMEs

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/...

SG ACCES DOCUMENTS, Internal Market, Industry, Entrepreneurship and SMEs

1 Attachment

Link: [1]File-List
Link: [2]Edit-Time-Data
Link: [3]themeData
Link: [4]colorSchemeMapping

Dear Mr Teffer,

 

Thank you for your e-mail.

We understand your frustration and we would like to assure you that we are
working on the final decision in relation to your request. Considering
that the consultations in relation to your application have not yet been
finalised, the final decision has not been adopted yet. However, we would
like to assure you that we are doing our utmost to provide you with a
reply as soon as possible.

 

Please accept our sincere apologies for the inconvenience this delay may
cause to you. Thank you for your understanding.

 

Kind regards,

 

 

 

ACCESS TO DOCUMENTS TEAM (IC)

 

[5]cid:image001.gif@01D46531.06A8B6B0

 

European Commission

Secretariat-General

SG.C1 (Transparency, Document Management and Access to Documents)

[email address]

 

 

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