Industry lobbying on the Preparatory Action on Defence Research and the EDRP

Bram Vranken made this access to documents request to Internal Market, Industry, Entrepreneurship and SMEs

Waiting for an internal review by Internal Market, Industry, Entrepreneurship and SMEs of their handling of this request.

From: Bram Vranken

Delivered

Dear Internal Market, Industry, Entrepreneurship and SMEs,

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:

- a list of meetings of DG Growth (former DG Enterprise and Industry) officials and/or representatives (including the Commissioner and the Cabinet) and representatives of individual companies, including lobby consultancies and law firms, and/or industry associations, in which the upcoming Preparatory Action (PA) on Defence Research and the European Defence Research Programme (EDRP) were dealt with (since 2012);

- minutes and other reports of these meetings;

- all correspondence (including emails) between DG Growth officials and/or representatives (including the Commissioner and the Cabinet) and representatives of individual companies (including lobby consultancies and law firms) and/or industry associations, in which the PA on Defence Research and the EDRP were dealt with (between January 2012 and today).

Yours faithfully,

Bram Vranken
On behalf of Vredesactie

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

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Dear Mr Vranken,

 

Thank you for your e-mail dated 07/02/2017. We hereby acknowledge receipt
of your application for access to documents, which was registered on
14/02/2017 under reference number GestDem 2017/0904.

 

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
07/03/2017. In case this time limit needs to be extended, you will be
informed in due course.

 

You have lodged your application via the AsktheEU.org website. Please note
that this is a private 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.

 

Yours faithfully,

 

 

Access to Documents team
[1]cid:image001.gif@01CDA6CD.F9067970
European Commission

DG for Internal Market, Industry, Entrepreneurship and SMEs
A1/ Communication, Access to Documents and Document Management

 

 

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Dear Mr Vranken,

We refer to your e-mail dated 07/02/2017 in which you make a request for
access to documents, registered on 14/02/2017 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 today.

An extended time limit is needed as in order to retrieve the documents
requested, large files have to be examined.

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 28/03/2017.

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

Yours faithfully,

 

Access to Documents Team
[1]cid:image001.gif@01CDA6CD.F9067970
European Commission

DG for Internal Market, Industry, Entrepreneurship and SMEs
A1/ Communication, Access to Documents and Document Management

 

 

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Dear Mr Vranken,

We refer to your e-mail dated 07/02/2017 in which you make a request for
access to documents, registered on 14/02/2017 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 extended
time limit of 15 working days, which expires today. We are doing our best
to send you the reply to your request in the coming days.

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

Yours faithfully,

 

Access to Documents Team
[1]cid:image001.gif@01CDA6CD.F9067970
European Commission

DG for Internal Market, Industry, Entrepreneurship and SMEs
A1/ Communication, Access to Documents and Document Management

 

 

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From: Bram Vranken

Delivered

Dear Internal Market, Industry, Entrepreneurship and SMEs,

May I point you to article 7 of regulation 1049/2001 which states that only:

"In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days"

Can you confirm if it is indeed the case that my requests relates to a very long document or to very large number of documents? And could you please give me an update how far my request has proceeded?

Yours faithfully,
Bram Vranken

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Internal Market, Industry, Entrepreneurship and SMEs

Dear Mr Vranken,

We confirm that your application concerns a large number of documents. Please note that DG GROW is currently working in the preparation of our response.

We apologise once again for the delay and for any inconvenience this may cause.

Yours faithfully,

DG GROW – Access to documents team
European Commission
Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs
DG GROW/A1 – Communication, Access to Documents and Document Management

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From: Bram Vranken

Delivered

Dear Internal Market, Industry, Entrepreneurship and SMEs,

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 'Industry lobbying on the Preparatory Action on Defence Research and the EDRP'.

DG Grow's response to the above mentioned FOI request is long overdue and exceeds the time frame as stipulated under Regulation 1049/2001.

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

Yours faithfully,

Bram Vranken

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Internal Market, Industry, Entrepreneurship and SMEs

Dear Mr Vranken,

Thank you for your email of 28/04/2017 (below) in which you lodged a confirmatory application for access to documents - GESTDEM 2017/0904.

In the meantime, the Secretariat-General has been informed by DG GROW that the initial reply is delayed, however, you will receive a response very soon.

In view of this, we would like to inform you that the Secretariat General will not register your confirmatory application at this stage.

However, upon receipt of the initial reply, if you wish to submit a confirmatory request in accordance with Article 7 of the Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, you remain free to do so.

We sincerely apologise for the delay and the inconvenience it causes you.

Best regards,

ACCESS TO DOCUMENTS TEAM

European Commission
Secretariat General
Unit SG.B4 – Transparency

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Attachment L Ares 1655597 LE Vranken signed.pdf
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Attachment Copy of Annex 1 List of meetings.xlsx
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Attachment Copy of Annex 2 Document register.xls
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Attachment Annex 3 Released documents.zip
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Dear Mr Vranken,

 

Please find attached a letter by Ms Lowri Evans, Director General for
Internal Market, Industry, Entrepreneurship and SMEs.

 

Kind regards

 

DG GROW, Unit I4

Defence, Aeronautic and Maritime Industries

European Commission

 

BREY 9/028

1049 Brussels/Belgium

+32 2 299 48 58

[1][email address]

 

 

 

 

 

 

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From: Bram Vranken

Delivered

Dear Internal Market, Industry, Entrepreneurship and SMEs,

We thank you for your letter which we received on 02/05/2017, in which you inform us of your decision concerning our request for information. Herewith, we would like to submit a confirmatory application in accordance with Article 7(2) of Regulation (EC) No 1049/2001 as you refused disclosure to much of the information requested.

We would like to remind you that, according to the case-law of the ECJ, the exceptions in Article 4 of the Regulation must be interpreted strictly, as such exceptions derogate from the principle of the widest possible public access to documents. This also has to be reflected in the statement of reasons of the decision concerning the request for information. It is also settled in the case-law that if an institution refuses access it must explain how disclosure of the document, in each individual case, could specifically and effectively undermine the interest protected by the exception. Moreover, the risk of that interest being undermined must be reasonably foreseeable and must not be purely hypothetical. (e.g. ECJ, Turco T-84/03)

When interests are balanced it is important to consider that also the public access to information is a fundamental right, which necessitates a strict interpretation of exceptions and an adequate weighting in any evaluation of interests. Moreover, as the ECtHR requires a similar treatment of NGOs in their watchdog function with press. (e.g. ECtHR, Youth Initiative v Serbia 25 June 2013; ECtHR, Társaság a Szabadságjogokért v. Hungary, 14 April 2009)

1. Refusal to disclose names of companies and names of individuals in the ‘list of meetings’ and the ‘document register’

The list of meetings and the document register excludes names of companies and names of individuals “as disclosure is prevented by the exception to the right of access laid down in Article 4.1(a) second indent, Article 4.1(b) and Article 4(3) of Regulation (EC) No 1049/2001”. This refers to one or more company names and names of individuals redacted under the following numbers of the document register: 1, 2, 3, 4, 8, 10, 11, 12, 18 16, 21, 24, 25, 26, 31, 33, 39.

It is not clear how disclosure of the name of a company or of individuals would undermine matters of a military nature, (Article 4.1 (a) second indent), the privacy of the individual (Article 4.1(b)) and the decision making procedure (Article 4(3)).

The European Commission has already implemented policies which reveal the name of companies in case of meetings with Commissioners or with cabinet members. Several of these meetings took place with reference to the Preparatory Action on Defence Research (PADR).

Article 4.1(a) second indent: it is unclear how the name of a company or individuals could damage defence and military matters. The refusal only refers to the exception without further statement of reasons and is therefore not properly motivated. Furthermore, names of companies were released in other, similar request. We refer to the following FOI request where a similar question was asked to DG Budget and DG Research and where the name of the companies/organisations were included:
- request by Bram Vranken on 16/02/2017 to DG Research, GestDem 2017/0942, https://www.asktheeu.org/en/request/indu...
- request by Bram Vranken on 15/02/2017 to DG Budget, https://www.asktheeu.org/en/request/indu...

Any refusal will therefore have to motivate how for each specific document the release of the name of the company and individual would effectively undermine the public interest.

Article 4.1(b) makes an exception for disclosure of information where “disclosure would undermine the protection of privacy and the integrity of the individual”. A company however can not be considered as an individual. Nor regulation 45/2001, nor similar legislation like the current data protection directive 95/46 or the upcoming GDPR, consider information or data from companies as personal data, but only protects natural persons. This exception can therefore not be used to withhold names of companies. Furthermore, also for individuals the refusal does not state any reasons but only refers to the exception and is therefore not properly motivated.

In any case, we ask this information as part of research on the extent to which the defense industry has influence on EU policy making. This research will result in a public report and further communication to the public in an effort to create an informed public debate on EU policy making. As such this effort serves the public interest, similar to how press serves the interest of public and informed debate (cfr. the ECtHR jurisprudence cited above), and this information can therefore be released based on Article 8(a) of Regulation 45/2001.

Article 4(3): we contest that the Preparatory Action on Defence Research (PADR) relates to a “matter where the decision has not been taken by an institution”. Firstly, the PADR’s implementation started at the beginning of 2017 as it is part the budget of 2017 approved by the European Parliament. Secondly, it is highly improbable that disclosure of the name of the company will undermine the institution's decision-making process. As the refusal only refers to the exception without any statement of reasons this is not properly motivated and has to be considered as purely hypothetical.

2. Non-disclosure of documents

DG Grow refuses disclosure of 26 documents (numbers 1-4, 9-26, 29, 33, 39) and their attachments, as “disclosure is prevented by exception to the right of access laid down in Article 4.1(a) second indent”. DG Grow states that “the withheld parts of the documents contain information relating to the Preparatory Action on Defence Research which is not yet adopted”.

“Some” of the documents are withheld based on the exception in Article 4(2), because they would contain commercially sensitive information and their disclosure would undermine the interests of the stakeholders. Also, “some” of the documents would contain personal information and access is refused based on the exception in Article 4(1) (b).
DG Grow further excludes the possibility of granting partial access “since the documents in question are covered in their entirety by the above mentioned exception”.

Article 4.1(a) second indent

DG Grow refuses to disclose information about the above mentioned 26 documents as the disclosure of these documents would undermine the protection of defence and military matters. We contest this decision based on several grounds:

- Concerning the potential negative impact, the refusal only states “This type of information is considered to undermine public interests if disclosed”. Such statement does not clarify how such disclosure of the specific documents would effectively undermine the protection of defence and military matters. It has therefore to be considered purely hypothetical and not a valid ground for refusing access.

- The FOI request asked for disclosure of documents and minutes with relation to meetings of DG Grow with representatives of individual companies, including lobby consultancies and law firms, and/or industry associations. It is unclear why DG Grow in these specific cases can exchange military sensitive information with external stakeholders, but not with civil society or the general public. At least, such a refusal requires a specific statement of reasons to why an exchange with civil society would undermine the protection of defence and military, while such an exchange with industry and industry organizations would not.

- DG Grow furthermore only justifies the exclusion of disclosure of these documents based on the consideration that the PADR “relies on consultations with third party stakeholders to determine the type of research to be conducted. […] What research can be done and needs to be done is linked with the competence of the European defence industry […]. This type of information is considered to undermine public interests if disclosed.” DG Grow does not specify any other topics which would justify an exclusion under Article 4.1(a). Hence, this line of argument would only exclude documents which contains information about the type of research to be conducted under the PADR. It is however very unlikely that all the documents listed solely contain information about research topics. Article 4(6) of the Regulation 1049/2001 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.”

- Many of the documents mentioned refer to information which has been shared during public events and with a broad array of participants attending (I refer to some or all documents grouped under headings 5, 6, 7, 8, 9, 13, 14, 17, 18, 20, 23, 24, 29, 30). These documents refer to the following events:
- Italian National Debate on Defence (5)
- Launch of the Security and Defence brochure (6)
- Berlin Security Conference 2013 (7)
- High Level Conference on the European Defence Sector (8)
- World Economic Forum (Davos) (9)
- High Level Conference 4th March,2014 (13, 14, 17, 18)
- Jornada sobre la Industria Europea de la Defensa (20)
- ASD Annual Conference Prague (22-24)
- Workshop: Preparatory Action on CSDP-related research (29-30)
The audience which was present at these events included a broad array of external stakeholders, including journalists, members of parliament, industry, officials from non-EU member states, etc. There is no justification why DG Grow cannot disclose this information now.

Article 4.1(b)

Here we have to repeat our argumentation made above. Article 4.1(b) makes an exception for disclosure of information where “disclosure would undermine the protection of privacy and the integrity of the individual”. A company however can not be considered as an individual. Nor Regulation 45/2001, nor similar legislation like the current data protection directive 95/46 or the upcoming GDPR, consider information or data from companies as personal data, but only protects natural persons. This exception can therefore not be used to withhold names of companies.

In any case, we ask this information as part of research on the extent to which the defense industry has influence on EU policy making. This research will result in a public report and further communication to the public in an effort to create an informed public debate on EU policy making. As such this effort serves the public interest, similar to how press serves the interest of public and informed debate (cfr. the ECtHR jurisprudence cited above), and this information can therefore be released based on Article 8(a) of Regulation 45/2001.

Article 4(2)

The refusals based on this article do not state how the disclosure, even partially, would specifically and effectively undermine the commercial interests of a natural or legal person. They only refer to the fact that the documents contain commercially sensitive information without further clarification. Therefore such risk has to be considered purely hypothetical.

Furthermore, any refusal has to balance the potential damage with the harm to the fundamental right to receive information for the public interest of an informed, public debate. The refusal only mentions objections by the companies involved, but does not clarify how the public interest has been taken into account. Openness on how private interests of companies are taken into account in the preparation of EU policy is very relevant to enable an informed, public debate.

Article 4(3)1

DG Grow states that the PADR “has not been adopted yet and it would undermine the decision making procedure” as a reason for non-disclosure.

The mere fact that the PADR is not adopted yet is not an adequate reason to refuse disclosure, as has been made clear in case law by the European Court of Justice (e.g. ECJ, C-280/11 Access Info Europe). The refusal does not clarify how the disclosure of these specific documents would effectively and seriously undermine the decision making process. Such undermining has therefore to be considered purely hypothetical.

Even if a risk exists that disclosure of the requested documents would undermine the decision making process, it needs to be weighted against the public interest to have an informed, public discussion. The decision only mentions “that there appears to be no overriding public interest”. This can hardly qualify as a proper weighting of interests. It appears that the public interest to have an informed, public discussion and the importance of access to information for that purpose has not been properly taken into consideration.

We refer to the following FOI request where minutes from the Group of Personalties were disclosed on the PADR, despite the decision-making process still taking place: Request by Laetitia Sedou on 20/04/2016 to DG Grow, GestDem 2016/2138 https://www.asktheeu.org/en/request/grou...

Moreover, as outlined above, it can hardly be stated that the PADR has not been adopted yet. The PADR has an approved budget for the year 2017 and has been adopted by a vote in European Parliament in 2016. We also refer to the Commission Decision “on the financing of the ‘Preparatory action on Defence research’ and the use of unit costs for the year 2017” from 11.04.2017.

The European Defence Agency and DG Grow have organised several outreach events to inform possible participants about the PADR and the specific policies and modalities of the PADR:
- 19.01.2017: Info day on the PADR: https://www.kivi.nl/afdelingen/defensie-...
- 24.01.2017: Seminar on EU funding for the defence sector: http://eda.europa.eu/info-hub/events/201...
- 28.03.2017: European opportunities for defence-related clusters: http://eda.europa.eu/info-hub/events/201...

Even if not all the particularities of the PADR have been decided yet, most of them should be finalized by now. Certainly as DG Grow has announced that the call for proposals and the participation modalities will be published in late May 2017. As such, it can hardly be stated that the PADR has not been adopted yet.

3. Missing information

The FOI request asked for a list of all meetings between DG Grow officials and representatives of individual companies, including lobby consultancies and law firms, and/or industry associations, in which the upcoming Preparatory Action (PA) on Defence Research and the European Defence Research Programme (EDRP) were dealt with (since 2012).

DG Grow has not included all meetings between representatives of companies and DG Grow officials. At least the following four meetings were not included in the list of meetings provided for by DG Grow:
- 11/12/2015: meeting between Lowri Evans and ASD during which the PADR was discussed: http://ec.europa.eu/transparencyinitiati...
- 23/02/2016: meeting between Bienwowska and Saab AB, MBDA, TNO, Leonardo S.p.A., BAE Systems and Indra on the Group of Personalities exchange on defence related research: http://ec.europa.eu/transparencyinitiati...
- 23/02/2016: meeting between Fabrice Comptour and Saab AB, MBDA, TNO, Leonardo S.p.A., BAE Systems and Indra on the Group of Personalities exchange on defence related research: http://ec.europa.eu/transparencyinitiati...
- 31/03/2016: attendance of Commissioner Bienkowska at ASD board meeting during which the PADR was discussed: see https://www.asktheeu.org/en/request/requ...

Furthermore, the document register makes almost no mention of email correspondence between officials of DG Grow and representatives from the private sector. Considering the high amount of meetings (37 listed), it seems very unlikely there has not been more email correspondence than the correspondence listed in the document register.

The meetings missing on the list of meetings and the lack of email correspondence creates at least an impression that the ‘list of meeting’ and the ‘document register’ is incomplete.

As such, I would like to receive confirmation that the list of meetings indeed includes all the meetings which have taken place between officials from DG Grow and representatives from industry. Additionally, I would like confirmation that the correspondence included in the document register is indeed all the correspondence which has taken place between DG Grow officials and representatives from industry.

If possible, I would like to extend the scope of this confirmatory application to meetings and documents held up to the date of the reply of DG Grow (02/05/2017).

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

Yours faithfully,

Bram Vranken

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Internal Market, Industry, Entrepreneurship and SMEs

Dear Sir,

Thank you for your email dated 12/05/2017, 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 2017/904.

We hereby acknowledge receipt of your confirmatory application for access to documents which was registered on 12/05/2017 (Ares(2017)2436813).

Your application will be handled within 15 working days (07/06/2017). 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.

We kindly offer you the possibility to provide us a contact phone number (by email to [email address]), 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,

Carlos Remis
SG.B.4
Transparence
Berl. 05/315

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Dear Mr Vranken,
Please find attached a letter concerning your application for access to
documents under Regulation (EC) No 1049/2001 - Gestdem 2017/904
Yours sincerely,
ACCESS TO DOCUMENTS TEAM
European Commission
Secretariat General
Unit B4 - Transparency
 
 
 
 

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Dear Mr Vranken,
Please find attached a letter concerning your application for access to
documents under Regulation (EC) No 1049/2001 - Gestdem 2017/904
Yours sincerely,
ACCESS TO DOCUMENTS TEAM
European Commission
Secretariat General
Unit B4 - Transparency
 
 
 

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From: Bram Vranken

Delivered

Dear Secretariat General of the European Commission,

Herewith I would like to inform about the status of my confirmatory application filed on the 12th of May. The extended deadline already expired on the 28th of June.

According to Regulation (EC) No 1049/2001 article 8(2) it is only in exceptional cases that the time limit can be extended, for example in the case of a very large number of documents. Can you confirm that this is indeed the case? And could you give an indication of when the internal review will be finalised?

May I also highlight the fact that the FOI request in question was already filed in February, so is taking an exceptional long time, while the amount of meetings and documents requested is fairly limited.

Yours faithfully,

Bram Vranken

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Dear Mr Vranken,
 
Thank you for your e-mail. We are very sorry for the delay in this file
which is due to the fact that our internal consultations are not yet
finalised. I can assure you that we are doing our utmost to provide you
with a final reply as soon as possible.

We regret this additional delay and sincerely apologise for any
inconvenience this may cause.
 
Best regards,
 
Carlos Remis
SG.B.4
Transparence
Berl. 05/315
 
 

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From: Bram Vranken

Delivered

Dear Mr. Remis,

Could you please update us on the state of the confirmatory application, filed on the 12th of May.

May I also point out that the processing of the confirmatory application is long overdue. These delays are incompatible with Regulation 1049/2001. As such, we will consider filing an appeal if the confirmatory application of the 12th of May is not processed in a more timely manner compatible with the stipulations of Regulation 1049/2001.

Yours faithfully,
Bram Vranken

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