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Involvement of arms industry actors and private research centres in policy-making concerning the Preparatory Action on Defence Research

Bram Vranken made this access to documents request to European Defence Agency

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From: Bram Vranken

Delivered

Dear European Defence Agency,

I am writing on behalf of Vredesactie, a Member of the European Network Against Arms Trade ("ENAAT"), to exercise my right unders Regulation 1049/2001 to request access to documents as detailed below. As a Member of ENAAT, Vredesactie is actively involved in ensuring transparency within the EU institutions' defence and security policy-making process.

In 2016 the European Union took the unprecedented step and for the first time in its history set up a military research programme, the so-called Preparatory Action on Defence Research, worth €90m. Given the amount at stake and potential for conflict of interests, there is a pressing need for transparency in this area to ensure that decisions taken by EU bodies are free from the influence of the arms industry.

With the above in mind, I hereby respectfully request access to:

All documents containing information relating to the involvement of arms industry actors not already disclosed to the public (e.g. arms companies, their lobby groups, etc.) and private research centres in the context of the setting up and continuing development of the Preparatory Action on Defence Research.

For avoidance of doubt, I am seeking documents -- not already disclosed to the public -- which identify EDA interaction with any such arms industry actor and private research centre in relation to the Preparatory Action on Defence Research. Such documents may comprise minutes of meetings/correspondence with one or more of such stakeholders or otherwise refer to such stakeholders (for example, a document that identifies the type of entities that the EDA wanted to consult in relation to matters covered by this initiative).

I believe that disclosure of documents containing the above information is crucial for an enhanced public debate and increased accountability concerning the arms industry's influence on EU defence policy. In particular, getting a proper overview of the arms industry's lobbying in respect of EU policies in this area (ultimately funded by EU taxpayers) is essential for the ability of EU citizens and the civil society to participate more fully in those decision-making processes as well as to oversee that the decisions taken by EU bodies faithfully in the interest of EU citizens rather than being beholden to the arms lobby.

Our request should be treated in light of the European Ombudsman's recent decision in this area (concerning the Group of Personalities on Defence Research) which stipulated that: "[t]ransparency in this regard should have been especially important in the case of the Group of Personalities given that companies represented within the group could be eligible for funding under the programmes that it was advising on […]. (emphasis added) (see Decision in case 811/2017/EA)". The Ombudsman's reasoning – essentially that there is a need for increased transparency when it comes to the involvement of arms industry companies in the formulation of EU defence policy given the potential for such companies to subsequently receive funding under such programmes – is directly applicable to the documents requested here. There is therefore a particularly pressing need for the requested documents to be disclosed in full and without undue delay.

Thank you for your consideration in this matter. Please let us know if you have any questions.

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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From: EDA Information
European Defence Agency

Dear Sir

Thank you for your e-mail dated 28 January 2019. We hereby acknowledge receipt of your application for access to documents.

Before addressing your application, please note the following:
•You have lodged your application via the AsktheEU.org website. Please note that this is a private third-party website, which has no link with any institution, agency or body of the European Union. Therefore, the European Defence Agency (EDA) cannot be held accountable for any technical issues or problems linked to the use of this system.

•Please further note that the private third party running the AsktheEU.org website is responsible for the processing of your personal data via that website, and not the EDA. For further information on your rights, please refer to the third party’s privacy policy.

•Please note that EDA cannot be held liable for any loss and damage you might suffer from using the third party website AsktheEU.org.

As regards your application, please note that the description given in your application does not enable us to identify concrete documents, which would correspond to your request, which is drafted in very broad terms.

We therefore invite you, pursuant to Article 6(2) of Regulation (EC) No 1049/2001 regarding public access to documents, to provide us with more detailed information on the documents which you seek to obtain, such as references, dates or periods during which the documents would have been produced, etc…Such additional elements should allow us to identify any documents, which we have not already shared under previous applications, which fall under the scope of your request.

Please be informed that the 15 working days’ time limit for handling your application will start running when we receive the requested clarifications.

Thank you in advance for your understanding.

Kind Regards,
EDA

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From: Bram Vranken

Delivered

Dear EDA,

On 30/01 you asked me to clarify my request regarding industry involvement in the decision making process of the Preparatory Action on Defence Research. You stated that the request is "is drafted in very broad terms".

The request covers all documents covering:
1. All documents containing information regarding the interaction between industry actors and the European Defence agency (such documents may comprise minutes of meetings/correspondence/etc.);
2. In relation to the Preparatory Action on Defence Research;
3. The request excludes documents which have already been disclosed or are already in the public domain. As a similar FOI request was filed on 15/02/17 (https://www.asktheeu.org/en/request/indu..., the current request does not cover the documents already disclosed in response to that request.

I hope this clarifies the scope of my request.

Yours sincerely,

Bram Vranken

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From: EDA Information
European Defence Agency

Dear Mr Vranken,

We refer to your email of 28/01 wherein you submit a request for access to documents.

We further refer to our request for clarification dated 30/01.

We finally refer to your reply of 01/02.

In your reply you refer to a request for access to documents you submitted on 15/02/2017, but you do not clarify the scope of your request. As it stands, it appears your application covers the same scope as the previous one.

As a result, we kindly ask you once more to please indicate references, dates or periods during which the documents would have been produced as well as any other information that would enable us to deal with your request (e.g. do you seek access to documents from that date - 15/02/2017 - until now?).

Once again, please be informed that the 15 working days’ time limit for handling your application will start running when we receive the requested clarifications.

Thank you in advance for your understanding.

Kind Regards,
EDA

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From: Bram Vranken

Delivered

Dear EDA,

Many thanks for your answer and your request for clarification. I would like to clarify that the current FOI request covers the period 01/01/2015 until the date of the application (28/01/19).

We believe the request is already very specific in its scope as it only relates to the involvement of defence industry actors and private research centres specifically in relation to the PADR and excludes any documents available to the public or previously disclosed.

We believe that given the amounts at stake and potential for conflict of interests, there is a pressing need for transparency in this area to ensure that decisions taken by EU bodies are free from the influence of the arms industry. We would like to remind you about the recent decision taken by the European Ombudsman (case 811/2017/EA) which confirms the pressing need for transparency in this regard: https://www.ombudsman.europa.eu/en/decis....

Yours sincerely,

Bram Vranken

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From: EDA Information
European Defence Agency

Dear Mr Vranken,

In your response to our request for clarifications, you indicated that your request for access to documents covers a 4 years period of time, namely from 01/01/2015 to 28/01/2019.

This would require an extensive search and assessment of documents potentially falling under the scope of your request. We would like therefore to explore the possibility to find a fair solution with you as provided for by Article 6(3) of Regulation 1049/2001. We would like to know, if you would agree to narrow the scope of your request in terms of timeframe and list of industries in which you are interested.

Please further be informed that 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 05/03/2019.

An extended time limit is necessary in order to retrieve any document(s) possibly 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 26/03/2019.

We apologize in advance for any inconvenience this may cause.

Best regards,
EDA

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From: EDA Information
European Defence Agency

Dear Mr Vranken,
Referring to our email of 5 March (below), we would like to know whether you would agree to narrow the scope of your request in terms of timeframe and list of industries in which you are interested?
Thank you very much!
Best,
EDA

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From: Bram Vranken

Delivered

Dear European Defence Agency,

Following up on your email, we agree to further limit the scope of my request in time to the period 01/01/2015 until the date of the application (28/01/19).

We hope this meets your request to further limit the scope of the request.

Yours faithfully,

Bram Vranken

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From: EDA Information
European Defence Agency


Attachment Request access documents Industry 2019.pdf
418K Download View as HTML

Attachment 2017 05 04 Industry Workshop on PADR.zip
1.9M Download

Attachment 2017 06 27 PADR INFODAY 2017.zip
4.7M Download

Attachment 2018 04 12 PADR INFODAY 2018.zip
1.8M Download

Attachment EU finding Info day WIEN 24.01.2017.zip
817K Download

Attachment PADR PP Presentation to ASD DRT.zip
1.4M Download

Attachment Presentations to CapTechs.zip
2.4M Download

Attachment Other meetings events.zip
4.5M Download


Dear Mr Vranken,

Subject: Your application for access to documents re. “Involvement of arms industry actors and private research centres in policy-making concerning the Preparatory Action on Defence Research”

We refer to your e-mail dated 28/01/2019 in which you submitted a request for access to documents covering
« All documents containing information relating to the involvement of arms industry actors not already disclosed to the public (e.g. arms companies, their lobby groups, etc.) and private research centres in the context of the setting up and continuing development of the Preparatory Action on Defence Research. For avoidance of doubt, I am seeking documents -- not already disclosed to the public -- which identify EDA interaction with any such arms industry actor and private research centre in relation to the Preparatory Action on Defence Research. Such documents may comprise minutes of meetings/correspondence with one or more of such stakeholders or otherwise refer to such stakeholders (for example, a document that identifies the type of entities that the EDA wanted to consult in relation to matters covered by this initiative). »

We further refer to our reply of 30/01/2019, wherein we inform you that the description given in your initial application, which is drafted in very broad terms, does not enable us to identify concrete documents corresponding to your request. We therefore invited you, pursuant to Article 6(2) of Regulation (EC) No 1049/2001 regarding public access to documents, to provide us with more detailed information on the documents which you seek to obtain, including references, dates or periods during which the documents would have been produced, etc…

We also noted that such additional elements would allow us to identify documents, which had not already been shared under previous applications and fall under the scope of your request.

On 01/02/2019, you responded indicating that “the request covers all documents covering:

1. All documents containing information regarding the interaction between industry actors and the European Defence agency (such documents may comprise minutes of meetings/correspondence/etc.);
2. In relation to the Preparatory Action on Defence Research;
3. The request excludes documents which have already been disclosed or are already in the public domain. As a similar FOI request was filed on 15/02/17 (https://www.asktheeu.org/en/request/indu..., the current request does not cover the documents already disclosed in response to that request.

This response, however, did not clarify the scope of your request and on 12/02/2019, we asked you once more to indicate references, dates or periods during which the documents would have been produced as well as any other information that would enable us to deal with the initial request, providing you with some examples of elements which could be given to clarify the request, such as dates for the relevant documents…

On 13/02/2019, you responded indicating that “the request covers the period 01/01/2015 until the date of the application (28/01/19)”.

We noted in our response to you on 05/03/2019, that your request for access to documents covered a 4 years period of time, namely from 01/01/2015 to 28/01/2019. Having assessed the request, we concluded that identifying any relevant documents with these elements would require an extensive search and assessment of documents potentially falling under the scope of your request.

As a result, we proposed to explore the possibility to find a fair solution with you as provided for by Article 6(3) of Regulation 1049/2001, and asked you again whether you would agree to narrow the scope of your request in terms of timeframe and list of industries in which you are interested. Further to a reminder sent to you on 13/03/2019, you agreed to limit the scope of your request in time to the period 01/01/2015 until the date of the application (28/01/19).

On this basis, we are pleased to inform you that we have identified the documents indicated in the attached table.

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 (‘Regulation 2018/1725’) (Official Journal L 205 of 21.11.2018, p. 39).

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, ECLI:EU:C:2017:994).

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.

As a last point, we would like to draw your attention to the fact that the European Defence Agency (EDA) does not have a role in "policy making concerning the PADR", and therefore all these documents are related to providing updates on the status of PADR to industry actors and private research centres.

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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From: Bram Vranken

Delivered

Dear European Defence Agency,

On the 27th of March you disclosed several documents on the involvement of the arms industry and private research centres on the Preparatory Action on Defence Research, for which many thanks.

We note that the disclosed documents mainly relate to speeches given by the EDA at a series of events. The FOI request however covered all documents related to these meetings including minutes of meetings/correspondence with one or more of such stakeholders or otherwise refer to such stakeholders (such as invitations to meetings, internal correspondence regarding these stakeholders and external correspondence with these stakeholders).

Can you confirm that no further documents could be identified falling under the scope the request?

Yours faithfully,

Bram Vranken

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From: EDA Information
European Defence Agency

Dear Mr Vranken,
We have well received your message of 15 April and are working on it.
You can expect an answer within 15 working days.
Kind regards,
EDA

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