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 ethics, legal and societal aspects (ELSA) reviews for all the project proposals in relation to the Preparatory Action on Defence Research.
On behalf of Vredesactie
Tel. +32 (0) 3 281 68 39
Mobile: +32 497 13 14 64
Dear Mr Vranken,
We hereby acknowledge receipt of your email dated 8 April 2019 wherein you submit an access to documents request under the provisions of Regulation 1049/2001.
We will get back to you within 15 working days.
Dear Mr Vranken,
We refer to your e-mail dated 08/04/2019 in which you make a request for
access to documents.
You request access to “documents which contain information with relation
to the ethics, legal and societal aspects (ELSA) reviews for all the
project proposals in relation to the Preparatory Action on Defence
On the basis of the description provided in your emails, we were able to
identify 24 documents falling under the scope of your request.
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
The redacted parts of the documents contain personal data and commercially
sensitive information of the legal entities that submitted it.
Disclosure of these parts would undermine the interests protected under
Article 4(1)(b) and 4(2) first indent.
In accordance with Article 4(1) of Regulation 1049/2001 “access to
documents is refused 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.”
In its judgement in Case 28-08 P (Bavarian Lager) , the Court of Justice
ruled that when a request is made for access to documents containing
personal data, 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 becomes fully
In this judgement, the Court stated that Article 4(1)(b) “requires that
any undermining of privacy and the integrity of the individual must always
be examined and assessed in conformity with the legislation of the Union
concerning the protection of personal data, and in particular Regulation
In accordance with Article 3 of Regulation (EU) 2018/1725, “ ‘personal
data’ means any information relating to an identified or identifiable
natural person (‘data subject’); an identifiable natural person is one who
can be identified, directly or indirectly, in particular by reference to
an identifier such as a name, an identification number, location data, an
online identifier or to one or more factors specific to the physical,
physiological, genetic, mental, economic, cultural or social identity of
that natural person”.
The expunged data, as mentioned above, clearly constitutes personal data
in the sense of Article 3(1) of Regulation (EU) 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
Therefore, EDA can transmit personal data only if the recipient
establishes the necessity of having the data transferred and if there is
no reason to assume that the data subjects’ legitimate interests might be
prejudiced. 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. Those conditions are cumulative.
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.
This provision is further confirmed in Case C-615/13 P (ClientEarth) where
the Court of Justice ruled that the institution does not have to examine
of its own motion the existence of a need for transferring personal data.
In the same ruling, the Court stated that if the applicant has not
established a need to obtain the personal data requested, the institution
does not have to examine the absence of prejudice to the person’s
Consequently, we have concluded that, pursuant to Article 4(1)(b) of
Regulation 1049/2001, access cannot be granted to the personal data that
have been redacted from the document(s) as the need to obtain access
thereto has not been substantiated in your request for access to documents
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.
Please note also that Article 4(1)(b) of Regulation 1049/2001 has an
absolute character and does not include the possibility to demonstrate the
existence of an overriding public interest in disclosure.
In addition, all commercial data have been expunged from the documents.
In accordance with Article 4(2) first indent of Regulation 1049/200, “the
institution 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 sensitive commercial
information whose disclosure might undermine the commercial and business
interests of the concerned legal entities and/or reveal know-how which
could also have a negative impact on the legal entities ability to
exercise their commercial and business activities.
The exceptions laid down in Article 4(2) of Regulation (EC) No 1049/2001
apply unless there is an overriding public interest in disclosure of the
We have examined to which extent exceptions laid down in Articles 4(2) may
be waived in case of an overriding public interest in disclosure. Such an
interest must firstly be of 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 Articles
We consider that the prevailing interest in this case is to protect the
of the legal entities concerned.
Therefore, we have concluded that only partial access to the document(s)
Please further note that some information has been expunged from the
document(s) as it is out of the scope of your request.
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].
Dear European Defence Agency,
Please pass this on to the person who reviews confirmatory applications.
I am filing the following confirmatory application with regards to my access to documents request filed on 08/04/19 related to the ELSA reviews of PADR project proposals.
On 03/05/19 you released a 24 documents related to these reviews. Some parts of these documents have been blanked out. In your response you state that "redacted parts of the documents contain sensitive commercial information whose disclosure might undermine the commercial and business interests of the concerned legal entities".
The reasons you have put forward to justify the application of this exception is strikingly vague and thus unsatisfactory. In particular, you have not explained how disclosure can "specifically and actually" undermine the commercial interests of these entities and why this is "reasonably foreseeable and not purely hypothetical", as required by the established case law of the Court of Justice of the EU (see e.g. Cases 576/12 P, para. 45; C-280/11 P, para. 54; and C-506/08 P, para. 76). The exceptions to the general right of access to documents must be interpreted and applied strictly (Case T-403/05).
Moreover, you have failed to take into account the public interest in disclosing these documents. There are concerns about the ethical implications in relation to the European Defence Fund. Concerns in particular have been raised about some of the technological priorities of the European Defence Fund such as drone technology and artificial intelligence. Furthermore, there is a general public debate about the societal implications of future military technologies on human rights and international humanitarian law. As such, it is of particular importance that the public has an insight of how the EU is implementing ethical checks on military research projects.
Lastly, you have failed to consider giving partial access to the information requested. Article 4.6 of Regulation 1049/2001 clearly states that “If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.”
A full history of my request and all correspondence is available on the Internet at this address: https://www.asktheeu.org/en/request/elsa...
Dear Mr Vranken,
We have well received your confirmatory applicated dated 22 May.
You will receive our answer by 17 June COB.
Dear Mr. Vranken,
Please find attached the Chief Executive's decision regarding the confirmatory application you filed by email on 22 May 2019