Dear Health and Food Safety,

In accordance with Regulation 1049/2001, Regulation 1367/2006 as well as Article 10 of the Treaty on European Union, POLLINIS FRANCE - a French environmental NGO defending biodiversity as well as a sustainable agriculture, in order to protect bees and other pollinators in particular-, hereby requests access to the following documents and/or information in any other medium received or drawn up by the European Commission (hereinafter "Commission") :

All correspondence (including emails), agendas, minutes of meetings and any other reports of such meetings between officials / representatives / Commissioner / cabinet members of DG SANTE and the members of the Standing Committee on Plants, Animals, Food and Feed, regarding EFSA Guidance Document on the risk assessment of plant protection products on bees (Apis mellifera, Bombus spp. and solitary bees) in the period between July 2013 and September 2018.

As stated by the Court of Justice of the European Union : « a person may make a new demand for access relating to documents to which he has previously been denied access. Such an application requires the institution concerned to examine whether the earlier refusal of access remains justified in the light of a change in the legal or factual situation which has taken place in the meantime » (C-362/08 P, 26th January 2010, Internationaler Hilfsfonds eV c. European Commission).

According to this case law, any person can make a new demand for access relating to documents to which he has previously been denied access, when a change in the legal or factual situation has happened since the previous request. This is the case, as a decision taken by the European Ombudsman regarding accessibility of these documents has intervened since the previous request was refused.

As a consequence, and despite the fact the European Commission already refused us the access of the documents listed above after a first request in 2018, POLLINIS France is perfectly entitled to renew this demand since the European Ombudsman stated in a Decision dated December 3rd 2019 in case 2142/2018/EWM on the European Commission’s refusal to grant access to Member State positions on a guidance document concerning the risk assessment of pesticides on bees, that such documents should be disclosed according to the EU legislation.

We truly hope that no legal proceedings will be required and that you will allow us to have full access to the files in question.

Yours faithfully,

Mr. Nicolas Laarman
POLLINIS France
10 rue Saint-Marc
75002 Paris

Dear European Commission,

POLLINIS FRANCE acknowledges the Commission’s May 8th 2020 explicit refusal decision (ref. Ares (2020)2443219) to grant access to our documents’ request received on April, 14th under reference number GESTDEM 2020/2083, as well as its implicit decision dated May, 6th.

In accordance with Regulation 1049/2001, Regulation 1367/2006 as well as Article 10 of the Treaty on European Union, POLLINIS FRANCE hereby submits a confirmatory application (Regulation 1049/2001 – Article 7(2)) requesting access to :

“All correspondence (including emails), agendas, minutes of meetings and other reports such as meetings between officials/representatives/Commissioner/cabinet members of DG SANTE and the members of the Standing Committee on Plants, Animals, Food and Feed, regarding EFSA Guidance Document on the risk assessment of plant protection products on bees (Apis mellifera, Bombus spp. And solitary bees) in the period between July 2013 and September 2018”

According to your letter of May 8th (ref. Ares (2020)2443219), 59 documents have been identified as falling under the scope of this request. In this letter, your position is to refuse us the access to these documents as they would be entirely covered by the exception laid down in Article 4(3) of Regulation (EC) No 1049/2001, “protection of an institution’s decision-making process”.

We strongly disagree with the Commission’s reasoning used to dismiss our documents’ request on the following grounds :

a) There are no grounds for refusal

Article 4(3), second subparagraph, of Regulation (EC) n°1049/2001 prohibits the disclosure of documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution, “if disclosure would seriously undermine the institution's decision-making process”.

However, the disclosure of the aforementioned documents would not undermine the institution’s decision-making process.

The Commission claims that public release of the emails containing Member State positions on the Bee Guidance Document is contrary to their comitology rules of procedure (Standard Rules of Procedure for Standing Committees, adopted pursuant to Article 9 of Regulation (EC) n°182/2011) which explicitly exclude the disclosure of positions of individual Member States. Furthermore, the Commission argues that the disclosure of Member State positions would impact the mutual trust between each Member State and significantly increase the risk of external pressure on the representatives of Member States in the Standing Committee.

The basis for the adoption of the comitology rules of procedure is Article 9 of the Comitology Regulation. However, there is no provision in the Comitology Regulation which states that summary records shall not contain the individual positions expressed by Member State representatives within the scope of committee proceedings. Nor is there any other provision in the Comitology Regulation, which would impose confidentiality requirements on committee proceedings. On the contrary, Recital 19 of that Regulation makes it clear that public access to information on committee proceedings should be ensured in accordance with the EU law on public access to documents.

This means that the confidentiality provisions in the comitology rules of procedure, most notably Article 10(2) (stating that summary records of meetings shall not mention the individual position of the members in the committee’s discussion) and Article 13(2) (stating that the committee's discussions shall be confidential), are not themselves founded in the Comitology Regulation.

In light of the above, POLLINIS holds the view that the disclosure of Member State positions on the Bee Guidance Document is not contrary to the Comitology Regulation.

b) There is an overriding public interest in the disclosure of the documents

The exception provided by Article 4(3), second subparagraph, of Regulation (EC) n°1049/2001 must be waived if there is an overriding public interest to disclose a document. Such an interest must, firstly, be public and, secondly, outweigh the harm the disclosure may cause.

In all cases, -and even if it should be considered that the protection of an institution’s decision-making process should apply in this situation-, our request clearly falls under the overriding public interest for disclosure condition.

According to the Commission’s May 8th refusal decision to grant access to the documents, “the protection of ongoing decision-making process in this particular stage, especially the confidentiality of Member States positions expressed under the comitology procedure, prevails over the public interest of disclosure.”

POLLINIS’ request is submitted in a context in which more than 75% of flying insect biomass have vanished from German protected areas, according to an article by Caspar A. Hallmann and his peers. In January 2020, 25 scientists from the Alliance of World Scientists published a manifesto to warn on insect extinctions, underlining that “pesticides are key drivers of insect declines due to their intensive use, as well as inappropriate risk assessment regulation”. Moreover, the EU Parliament has recently called for both reduction in use of pesticides and improvement in pesticide risk assessment to protect pollinators (Resolution n°2019/2803 of 18 December 2019 on the EU Pollinators Initiative).

Disclosing these documents allows for public participation in such fundamental matters, in accordance with article 1 of the Treaty on European Union, which states that EU decisions must be taken “as openly and as closely as possible to the citizen”, as well as with article 10 of the Treaty, which states that “every citizen shall have the right to participate in the democratic life of the Union”, since transparency on Member State positions would allow EU citizens to understand why the EFSA Bee Guidance Document has been discussed at least 26 times in the Standing Committee on plants, Animals, Food and Feed meetings since 2013 without reaching any agreement.

As a result, it is clear that the right to participate in the democratic life of the Union as well as the right to environmental information, as protected by the Aarhus Regulation, constitute an overriding public interest in the disclosure of these documents.

Moreover, the Commission’s refusal creates a situation in which Member States are not accountable to their citizens, which represents a threat to the democratic process.

POLLINIS FRANCE has already taken action through the European Ombudsman to gain access to these exact same documents in a previous request in September 2018. Following this request and the refusal of the Commission to grant access to these documents, the Ombudsman made clear recommendations in favour of POLLINIS arguments in its Decision in case 2142/2018/EWM on the European Commission’s refusal to grant access to member State positions, regarding a guidance document concerning the risk assessment of pesticides on bees, as well as in a Recommendation in case 2142/2018/TE.

In its Recommendation, the Ombudsman warns that the exception invoked by the Commission to refuse public access to the positions of Member States representatives must be applied restrictively, and that “the Commission should grant public access to the requested documents, showing positions of the Member States on the draft bee guidance”.

This restrictive approach in the exceptions to the right of the public to access information regarding environmental matters stems from Regulation n°1367/2006 which states : “The grounds for refusal as regards access to environmental information should be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions in the environment.”

The Ombudsman takes the view that the documents sought by POLLINIS should benefit from the wider access granted to “legislative documents” under the EU law on public access to documents, as the documents sought by POLLINIS contain essential information as to why a guidance document, which constitutes a crucial measure to improve the evaluation of the impact of pesticides on pollinators, has not been adopted by the Commission since 2013.

In addition, the Commission states that “the adoption process of the Bee Guidance Document is characterised by significant degree of difficulty and complexity. The Bee Guidance Document is under pending discussions for more than 6 years now and the possibility to have frank discussion with Member States, without external pressure, is crucial for its final adoption.”

However, the Commission does not demonstrate how Member State representatives would be subjected to external pressure in the event of disclosure of the documents, nor has it shown how, if any pressure were imposed, the capacity of Member States to act fully independently would be affected.

Finally, the Commission has not demonstrated “that disclosure would seriously affect, prolong or complicate the proper conduct of the decision-making”.

For all the above reasons, we ask you to grant access to our documents request received on April, 14th under reference number GESTDEM 2020/2083.

Yours faithfully,

Mr. Nicolas Laarman
POLLINIS FRANCE
10 rue Saint-Marc
75002 Paris