Dear European Defence Agency,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain information with relation to the ehtics, legal and societal aspects (ELSA) reviews for all the projects selected under the Preparatory Action on Defence Research.

Yours faithfully,

Bram Vranken

On behalf of Vredesactie

Patriottenstraat 27,
2600 Berchem
www.vredesactie.be
Tel. +32 (0) 3 281 68 39
Mobile: +32 497 13 14 64

EDA Information, European Defence Agency

Dear Mr Vranken,
Thank you for your request for access to documents. We hereby acknowledge receipt, and will revert to you within 15 working days from the date of reception of your email.
Please note that all requests for access to documents must be sent to [EDA request email].
Best regards,
The European Defence Agency

[EDA request email]
+32 (0) 2 504 28 00
Rue des Drapiers 17-23, B-1050 Brussels, Belgium

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BRULS Helmut, European Defence Agency

Dear Mr Vranken,

We refer to your e-mail dated 28/01/2019, wherein you submit a request for access to documents.

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 expired on 18/02/2019.

An extended time limit is necessary as your application in order to retrieve any document(s) falling under the scope of your request.

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 11/03/2019.

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

Best regards,
EDA

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EDA Information, European Defence Agency

2 Attachments

Dear Mr Vranken,

 

We refer to your e-mail dated 28/01/2019 wherein you make a request for
access to documents.

 

We also refer to our holding reply of 19/02/2019 wherein we informed you
about the necessity to extend the deadline until 11/03/2019.

 

You request access to “documents which contain information with relation
to the ethics, legal and societal aspects (ELSA) reviews for all the
projects selected under the Preparatory Action on Defence Research.”

 

We have identified the following documents falling under the scope of your
request:

 

2 ELSA deliverables assessment reports and 2 deliverables, all related to
the PYTHIA project.

 

I.             With regard to the ELSA deliverables assessment reports

 

Having examined the documents requested under the provisions of Regulation
(EC) No 1049/2001 regarding public access to documents, we have come to
the conclusion that they may be only partially disclosed. Some parts of
the documents have been blanked out as their disclosure is prevented by
exceptions to the right of access laid down in Article 4 of this
Regulation.

Article 4(2), first indent, of Regulation 1049/2001 provides that "[t]he
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."

 

The redacted parts of the documents contain information which disclosure
could have a negative impact on the commercial interests of the
beneficiaries and their experts. Following the recommendations in the
report drafted by the ELSA expert, the consortium’s submission has been
amended. Therefore, if the expunged parts are to be disclosed, this could
adversely affect the consortium’s reputation, which would harm its
business interests.

 

Pursuant to Article 4(2), third indent, of Regulation 1049/2001, we have
examined to which extent the exception laid down in Article 4(2) of
Regulation 1049/2001 may be waived in case of an overriding public
interest in full disclosure. Such an interest must firstly be a public
interest and secondly outweigh the harm caused by the disclosure.

 

Having analysed your request, we have not found any elements which could
justify the existence of an overriding public interest in the sense of the
Regulation, which would outweigh the exceptions stipulated in Article 4(2)
mentioned above.

 

Therefore, we have concluded that only partial access to the
aforementioned document(s) can be granted.

In addition, all personal data in the document(s) have also been expunged.

Pursuant to Article 4(1)(b) of Regulation (EC) No 1049/2001, access to a
document has to be refused if its disclosure would undermine the
protection of privacy and the integrity of the individual, in particular
in accordance with European Union legislation regarding the protection of
personal data.

 

The applicable legislation in this field is Regulation (EC) No 2018/1725
of the European Parliament and of the Council of 23 October 2018 on the
protection of natural persons with regard to the processing of personal
data by the Union institutions, bodies, offices and agencies and on the
free movement of such data, and repealing Regulation (EC) No 45/2001 and
Decision No 1247/2002/EC (Official Journal L 205 of 21.11.2018, p. 39)
(‘Regulation 2018/1725’).

 

The documents to which you request access contain personal data, in
particular, name, surname, phone numbers and handwritten signatures.

 

Indeed, Article 3(1) of Regulation 2018/1725 provides that personal data
‘means any information relating to an identified or identifiable natural
person […]’. The Court of Justice has specified that any information,
which by reason of its content, purpose or effect, is linked to a
particular person is to be considered as personal data (Judgment of the
Court of Justice of the European Union of 20 December 2017 in Case
C-434/16, Peter Nowak v Data Protection Commissioner, request for a
preliminary ruling, paragraphs 33-35).

 

In its judgment in Case C-28/08 P (Bavarian Lager, Judgment of 29 June
2010 in Case C 28/08 P, European Commission v The Bavarian Lager Co. Ltd,
EU:C:2010:378, paragraph 59) , the Court of Justice ruled that when a
request is made for access to documents containing personal data, the Data
Protection Regulation becomes fully applicable (Whereas this judgment
specifically related to Regulation (EC) No 45/2001 of the European
Parliament and of the Council of 18 December 2000 on the protection of
individuals with regard to the processing of personal data by the
Community institutions and bodies and on the free movement of such data,
the principles set out therein are also applicable under the new data
protection regime established by Regulation 2018/1725).

 

Pursuant to Article 9(1)(b) of Regulation 2018/1725, ‘personal data shall
only be transmitted to recipients established in the Union other than
Union institutions and bodies if  ‘[t]he recipient establishes that it is
necessary to have the data transmitted for a specific purpose in the
public interest and the controller, where there is any reason to assume
that the data subject’s legitimate interests might be prejudiced,
establishes that it is proportionate to transmit the personal data for
that specific purpose after having demonstrably weighed the various
competing interests’.

 

Only if these conditions are fulfilled and the processing constitutes
lawful processing in accordance with the requirements of Article 5 of
Regulation 2018/1725, can the transmission of personal data occur.

 

According to Article 9(1)(b) of Regulation 2018/1725, the European Defence
Agency has to examine the further conditions for a lawful processing of
personal data only if the first condition is fulfilled, namely if the
recipient has established that it is necessary to have the data
transmitted for a specific purpose in the public interest. It is only in
this case that the European Defence Agency has to examine whether there is
a reason to assume that the data subject’s legitimate interests might be
prejudiced and, in the affirmative, establish the proportionality of the
transmission of the personal data for that specific purpose after having
demonstrably weighed the various competing interests.

 

In your request, you do not put forward any arguments to establish the
necessity to have the data transmitted for a specific purpose in the
public interest. Therefore, the European Defence Agency does not have to
examine whether there is a reason to assume that the data subject’s
legitimate interests might be prejudiced.

 

Consequently, we  conclude that, pursuant to Article 4(1)(b) of Regulation
1049/2001, access cannot be granted to the personal data, as the need to
obtain access thereto for a purpose in the public interest has not been
substantiated and there is no reason to think that the legitimate
interests of the individuals concerned would not be prejudiced by
disclosure of the personal data concerned.

 

II.            With regard to the deliverables

 

Having examined the documents requested under the provisions of Regulation
(EC) No 1049/2001 regarding public access to documents, we have come to
the conclusion that access cannot be granted.

 

Article 4(2), first indent, of Regulation 1049/2001 provides that "[t]he
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."

 

The documents which you would like to obtain contain commercially
sensitive data, such as know-how, expertise and originality, which
disclosure could undermine the protection of the commercial interest of
the copyright holder.

 

Pursuant to Article 4(2), third indent, of Regulation 1049/2001, we have
examined to which extent the exception laid down in Article 4(2) of
Regulation 1049/2001 may be waived in case of an overriding public
interest in full disclosure. Such an interest must firstly be a public
interest and secondly outweigh the harm caused by the disclosure.

Having analysed your request, we have not found any elements which could
justify the existence of an overriding public interest in the sense of the
Regulation, which would outweigh the exceptions stipulated in Article 4(2)
mentioned above.

 

Therefore, we have concluded that access to the aforementioned document(s)
cannot be granted.

 

Means of redress

 

In accordance with Article 7(2) of Regulation 1049/2001, you are entitled
to make a confirmatory application requesting EDA to review its position.

 

Such a confirmatory application should be addressed within 15 working days
upon receipt of this letter to the Chief Executive of EDA to the following
email: [EDA request email].

 

Yours faithfully,

 

EDA

 

 

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Dear European Defence Agency,

Many thanks for your response.

I would like to ask if you could confirm that these documents are indeed the only documents falling under the scope of my request. Can you confirm that there are no similar documents regarding other PADR projects (such as Ocean2020, GOSSRA, VESTLIFE, etc.)?

Yours faithfully,

Bram Vranken

EDA Information, European Defence Agency

Dear Mr Vranken,

We refer to your email of 12/03/2019 wherein you requested that EDA confirms that there are no other documents falling under the scope of your request.

We hereby confirm that at present there are no other ELSA documents available for the still ongoing PADR projects listed in your email.

Best regards,
EDA

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