Dear Maritime Affairs and Fisheries,

In accordance with Article 6(1) of Regulation 1049/2001, Article 3 of Regulation 1367/2006, and Article 42 of the Charter of Fundamental Rights, ClientEarth AISBL requests access to the following documents related to the 2022 total allowable catches (TACs) for fish stocks in the Northeast Atlantic:

(i) Any records, minutes or notes of meetings/discussions that took place on the 2022 TACs between (i) Commission representatives and Member State representatives for EU only stocks, (ii) Commission representatives and Member State representatives for EU/UK shared stocks, and (iii) the Commission representatives and UK representatives for EU/UK shared stocks.

For the sake of clarity, we request access to documents relating to both final TACs and provisional EU/UK shared TACs, including to any minutes or notes of Council working party/ministerial meetings taken by Commission staff and any internal Commission briefings on the subject. We do not seek access to emails and correspondence exchanged, nor to the Commission's legislative proposals for the 2022 TACs, unless such documents are annotated and/or contain negotiation directives. We also do not seek access to the documents that are publicly available in the Council’s document register, filed under interinstitutional code 2021/0305 (NLE) and 2021/0345 (NLE) at the date of this request.

(ii) We also request access to the letter sent by some Member States to the Commission as referred to in the document ST 13844 2021 ADD 1 (https://data.consilium.europa.eu/doc/doc...) in the context of southern hake (“We propose a roll-over for this stock, as we have supported in a recent letter sent to the Commission by the concerned MS.”).

In the interest of good administration, ClientEarth requests that the response clearly identifies the documents in the Commission’s possession in relation to each of these categories and clearly indicates to which category the disclosed documents relate.
Finally, we request that the documents/information falling within the scope of this request, be made publicly available on the Commission’s register, in accordance with Articles 11 and 12 of Regulation 1049/2001 and Article 4 of Regulation 1367/2001.

Yours faithfully,
Madalina Popirtaru
Environmental Democracy Lawyer, ClientEarth AISBL
60 Rue du Trône (3rd floor), Box 11, Ixelles, 1050, Belgium

Dear MARE-ACCES-DOCUMENTS,

I confirm the receipt of your reply. Thank you!

Yours sincerely,
Madalina Popirtaru

Dear Sir/Madam,

Confirmatory application in relation to Request for access to documents Gestdem 2022/3819.

In conformity with Article 7(2) of Regulation 1049/2001, ClientEarth AISBL (the “Applicant”) hereby submits a confirmatory application regarding the Commission’s decision of 19 August 2011 (the “Decision”) which partially refuses full access to certain documents that have been identified as falling under the scope of the request for access to documents submitted on 4 July 2022 which was registered under Gestdem 2022/3819 (the “Request”).

The Applicant acknowledges that the Decision includes also the disclosure of one of the requested documents and confirms the receipt of this file, namely “Letter to C. Vitcheva from A. Villauriz, T. Coelho and E. Banel regarding southern hake, dated November 2021”.

For the sake of clarity, this confirmatory application does not challenge the parts of the disclosed document or of the Requested Documents which are redacted on the basis of the protection of personal data, as provided under Article 4(1)(b) of Regulation (EC) No 1049/2001.

The confirmatory application is strictly connected to the non-disclosure of the following documents (the “Requested Documents”):
• SI(2021)400: Note for the attention of Members of the Commission – Coreper I meeting on 10 December 2021 and
• SI(2021)403: Note for the attention of Members of the Commission – 3838 meeting of the Council of the European Union on Agriculture and Fisheries, Brussels, 12-13 December 2021.

The Decision refuses access to the Requested Documents on the basis of: (i) the exception protecting the decision-making process of the Commission provided under Article 4(3) of Regulation 1049/2001 and (ii) the exception from disclosure protecting international relations provided under Article 4(1)(a), 3rd indent of Regulation 1049/2021.

However, as the Applicant shows in the following, the Decision does not appear to be based on a specific and individual examination of each of the Requested Documents and failed to identify a serious risk of undermining the decision-making process to the applicable legal standard, as well as failed to show in an actual and specific manner how the disclosure of the Requested Documents would undermine the protection of the public interest as regards international relations.

Furthermore, the Applicant also respectfully asks the Commission for a new examination of the documents that fall under the scope of the Request and requests access to any other existing document that may be found following the new examination. Considering the complexity of the TACs 2022 decision-making process and the scope of the 2022 TAC Regulation, the Applicant was expecting more than two documents to be identified as being connected to the discussions held between the Member States’, the Commission’s and UK’s representatives on the process of fixing the 2022 annual fishing quotas and thus falling under the scope of the Request.

According to Case T-468/16, Verein Deutsche Sprache e. V. v EU Commission, the applicant of a request for access to documents can rebut the presumption of legality attached to the statement of the EU institution relating to the non-existence of documents requested by submitting relevant supporting evidence (para. 35). In this context, the Applicant mentions that its expectation that more documents would be identified as falling under the scope of the Request is supported by the fact that, from documents which are already in the public domain, it results that multiple meetings took place on the TAC 2022 topic, that are not included in the Decision.

For example, the documents registered in the Council’s document register as ST 13470 2021 INIT, ST 14359 2021 INIT and ST 14409 2021 INIT, regarding three meetings of the Council’s Working Party on Fisheries Policy on 4 November, 29 November and 2 December 2021, respectively, include amongst the topics discussed “PROPOSAL MAIN TACS 2022”, “EU-UK CONSULTATIONS 2022”, “EU-UK” and “Main TACs for 2022”, which clearly fall within the scope of the Applicant’s request.

Despite references in all three documents to participation of Commission representatives, in these meetings, the Decision does not mention the existence of any record, minutes or notes. The Applicant would find it surprising that no records were taken following these and other similar meetings, especially as the Commission has previously released detailed notes, containing specific Member State input (both on EU only stocks and stocks that are now shared with the UK) at such meetings, in response to past access to information requests submitted by the Applicant.

Examples of such documents include four files containing a “REPORT OF DISCUSSION IN THE COUNCIL WORKING PARTY REGARDING THE PROPOSAL FOR FISHING OPPORTUNITIES FOR CERTAIN FISH STOCKS AND GROUPS OF FISH STOCKS (ATLANTIC) FOR 2017” for meetings held on 4, 9, 17, 23 and 30 November 2016, which were disclosed on 17 July 2017, in response to the Applicant’s access to information request registered as “GestDem 2017/3796- Ares (2017) 3211301”(https://www.asktheeu.org/en/request/acce...). In response to the same request, the Commission also released the so-called ‘Council bible’, now public in the Council’s document register as ST 14854 2016 ADD 1 REV 2, listing specific input from individual Member States on a wide range of stocks. In the following year, the Commission again disclosed two similar files containing reports of discussions in the Council Working Party for meetings held on 9 and 17 November 2017, in response to the Applicant’s confirmatory application regarding the access to information request registered as “GESTDEM 2018/2076” (https://www.asktheeu.org/en/request/acce... ), on 23 July 2018. Therefore, the Applicant has reason to believe that similar records may exist for the above-mentioned meetings on 4 November, 29 November and 2 December 2021 and potential similar meetings related to the 2022 TACs.

As regards the content of the Decision and the non-disclosure of the Requested Documents, we hereby request a reconsideration of the Decision for the reasons below.

1. PRELIMINARY REMARKS:

The Applicant would like to make three preliminary points regarding the Requested Documents, namely that similar documents have been publicly disclosed in the past; the fact that the Requested Documents are legislative documents containing environmental information; and the status of the relevant decision-making process.

1.1 Similar documents are already publicly available
As a preliminary point, the Applicant mentions that it is surprising that disclosure of the Requested Documents has been refused, especially as other documents, which contain information we believe to be similar to that included in the Requested Documents, namely positions of the parties at the negotiating discussions held during the annual TAC-setting process, have been previously disclosed. Irrespective of the source of the document, the means to disclose it (either through active dissemination or following a request for access to documents) and the type of the document, some files containing such information are already available.

This is the case even in relation to the 2022 TACs, with several documents already in the public domain that show some of the positions of both EU Member States and the UK , as well as the Commission, and provide an insight into aspects on which views diverged. For example, the documents registered in the Council’s document register as ST 5289 2022 INIT and ST 13488 2021 INIT contain Member State comments on a number of stocks, including EU only and shared ones. Moreover, the Commission non-papers registered as ST 14766 2021 INIT, ST 14780 2021 INIT (which is not yet public in the Council’s register, but has been disclosed following an access to information request by the Applicant, registered as “Ref. 22/0630-PRO-ns”, https://www.asktheeu.org/en/request/conc... ) and ST 15263 2021 INIT provide details on the Commission’s approach, including for shared stocks. The latter two also explicitly highlight instances in which the EU and UK positions diverged. Further examples, also related to the post-Brexit TACs negotiations, include a range of documents containing information on EU/UK shared TACs set for 2021, which have been published after the adoption of the regulation. This includes Commission non-papers like those registered in the Council document register as ST 5031 2021 INIT and ST 5031 2021 INIT REV 1, two rather detailed letters exchanged between Commissioner Sinkevičius and the UK’s Secretary of State George Eustice (WK 6529/2021 INIT and WK 6606/2021 INIT, from 17 and 20 May 2021), as well as multiple documents containing Member State written comments (ST 6232 2021 INIT, ADD 1, ADD 2 and ADD 4) and a working paper containing a presidency compromise (WK 2332/2021 INIT), all of which were disclosed by the Council in response to the Applicant’s access to information request from 14 October 2021, registered as “Ref. 21/1729-aa/nb ”.

In addition, documents which are part of the same category as the two Requested Documents were previously disclosed by the Commission in response to the Applicant’s access to information requests from 8 February 2019 and 23 January 2020, registered as “GestDem 2019/768” and “GestDem 2020/0450”, respectively: a document labelled “SI(2019) 30” dated 11 January 2019, containing a “NOTE TO MEMBERS OF THE COMMISSION” on the “Meeting of the Council in the European Union (Agriculture and fisheries) Brussels, 17-18 December 2018” (disclosed in the Commission’s response to the Applicant’s confirmatory application, received on 3 July 2019, https://www.asktheeu.org/en/request/acce...), and another one labelled “SI (2019) 783” dated 20 December 2019, containing a “NOTE FOR THE ATTENTION OF MEMBERS OF THE COMMISSION” on “3740th meeting of the Council of the European Union on Agriculture and Fisheries Brussels, 16 and 17 December 2019” (disclosed in the Commission’s response to the Applicant’s access to information request, received on 6 March 2020, https://www.asktheeu.org/en/request/acce.... Indeed, these documents relate to the annual TAC negotiations at EU level only, as they date back to the pre-Brexit period, but the fact that they had been previously disclosed is still relevant for this Request, especially as the Applicant asked also access to documents regarding the discussion held in relation to the EU only 2022 TACs .

1.2 THE REQUESTED DOCUMENTS CONSTITUTE LEGISLATIVE DOCUMENTS
The Requested Documents constitute "legislative documents" within the meaning of Regulation 1049/2001 as they are documents elaborated in the process of establishing the total allowable catches (TACs) for EU stocks only, as well as for EU/UK shared fish stocks in 2022, which imposes legally binding obligations for the Member States.

Article 12(2) of Regulation 1049/2001 defines "legislative documents" as "documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States". Recital 6 clarifies that the co-legislators intended the process leading to the adoption of implementing and delegated acts to fall within the definition of “legislative documents”. It states:
“[w]ider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers , while at the same time preserving the effectiveness of the institutions' decision-making process. Such documents should be made directly accessible to the greatest possible extent” (emphasis added).

It should be noted that "acting in their legislative capacity" for the purposes of Regulation 1049/2001 is not confined to the adoption of acts by way of the ordinary or special legislative procedures, defined in Articles 289 TFEU. This is clarified by the reference to "delegated powers" in recital 6. The adoption of TACs on the basis of Article 43(3) TFEU is comparable to a delegated power. This is consistent with the Court of Justice's finding that fishing opportunities adopted under Article 43(3) are "intended to be taken in order to implement provisions adopted on the basis of Article 43(2)" (Joined Cases C-103/12 and C-165/12, 26 November 2014, EU:C:2014:2400, para. 50).

It is therefore clear that in adopting Regulation 1049/2001, the co-legislators made a normative choice to define the concept of “legislative documents” according to the binding effect that certain EU acts have in relation to the Member States, and not in accordance with the procedure for their adoption. Therefore, the fact that the decisions relevant to this request were not adopted in accordance with the ordinary or special legislative procedures laid down in the TFEU is wholly irrelevant to the status of the Requested Documents as legislative documents.

Given that the Requested Documents, and the positions and opinions expressed therein, directly relate to the adoption of the 2022 TAC Regulation (Council Regulation (EU) 2022/109 of 27 January 2022, as amended by Council Regulation (EU) 2022/515 of 31 March 2022), they are therefore to be considered legislative documents.

1.3 THE REQUESTED DOCUMENTS CONTAIN ENVIRONMENTAL INFORMATION
The Requested Documents contain "environmental information" within the meaning of Article 2(1)(d) of Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (the “Aarhus Regulation”).

The Aarhus Regulation defines "environmental information" as, inter alia:
"any information in written, visual, aural, electronic or any other material form on: […] (iii) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in points (i) and (ii) as well as measures or activities designed to protect those elements".
The elements referred to in point (i) are: "the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements."

The Requested Documents contain information about the fishing opportunities for 2022 adopted through the TAC Regulation, which regulates the exploitation of fish stocks and other marine species in the Northeast Atlantic. Therefore, they are information on measures that have a direct impact on biological diversity in coastal and marine areas. As such, the Requested Documents contain "environmental information" within the meaning of the Aarhus Regulation.

As will be shown below, the status of the Requested Documents as legislative documents containing environmental information is of significance with regard to the application of the exceptions in Article 4 para. (3) and in Article 4 para. (1), letter (a), 3rd indent of Regulation 1049/2021.

1.4. THE PROCESS ESTABLISHING THE 2022 TOTAL ALLOWABLE CATCHES FOR FISH STOCKS (TACs) IS ALREADY FINALISED; THE 2022 TAC REGULATION IS ALREADY ADOPTED AND IN FORCE
Both processes regarding the 2022 TACs, for EU only and EU/UK shared fish stocks has been finalised through the adoption of the 2022 TAC Regulation (Council Regulation (EU) 2022/109 of 27 January 2022, as amended by Council Regulation (EU) 2022/515 of 31 March 2022). Thus, through this Request, the Applicant is interested in obtaining relevant documents connected to a decision-making process which has been definitely finalised and does not seek to obtain records of information which have not formed part of that decision-making process.

This preliminary note is important, especially as the Commission’s reasoning in relation to the status of the decision-making process regarding the 2022 TACs is confusing, as shown immediately below.

2. MISAPPLICATION OF THE EXCEPTION IN ARTICLE 4(3) OF REGULATION 1049/2021 PROTECTING THE DECISION-MAKING PROCESS REGARDING TAC 2022

The Commission seeks to justify non-disclosure of the Requested Documents under Article 4(3) of Regulation based on the following reasoning:
"Parts of documents 1 and 2 are covered by the exception relating to the protection of the decision-making process of the Commission, provided for in Article 4(3), second subparagraph of Regulation (EC) No 1049/2001. Indeed, the relevant parts of these documents contain the description of the positions of the Member States, as well as the opinions thereon of the representatives of the European Commission, expressed during the negotiating phase, preceding the internal and international negotiations on the adoption of the decision on total allowable catch for 2022. These documents were drafted for internal purposes. The opinions included in these documents only reflect the understanding of the authors of the positions of the Member States expressed during the early stages of the negotiations and they were drafted under the legitimate expectation that they would not be made public. For the negotiations to have a successful outcome, it is essential that there is an atmosphere of mutual trust between the negotiating parties and that the frank exchange of views in a preparatory phase can be protected from public disclosure. Although the decision regarding total allowable catch for 2022 has been adopted by the Council, the process of fixing of fishing opportunities is still ongoing throughout the year, in particular through various amendments and the fixing of fishing opportunities for the next year. Therefore, disclosure of the documents requested would seriously undermine the decision-making process protected by Article 4(3), first subparagraph of Regulation (EC) No 1049/2001”.

It is important to note that it is not clear which subparagraph of Article 4(3) of Regulation 1049/2001 the Commission is relying on as it invokes both subparagraphs in the same argumentation. The Commission starts the justification by invoking the second subparagraph of Article 4(3), but concludes the reasoning by invoking the first subparagraph of Article 4(3).

Considering that the sub-paragraphs of Article 4(3) protect different interests and contain different legal tests, the reasoning provided to support this is so general that it is not understandable which of the two subparagraphs the Commission is actually relying on. This is a serious failure to state reasons in and of itself.
This confusion is enhanced also by that fact that even though the 2022 TACs decision-making process is already finalised, the Commission considers it still ongoing based on the fact that it may be amended: “Although the decision regarding total allowable catch for 2022 has been adopted by the Council, the process of fixing of fishing opportunities is still ongoing throughout the year, in particular through various amendments and the fixing of fishing opportunities for the next year”. This justification cannot be supported by the interpretation of Article 4(3) 1st and 2nd subparagraph of Regulation 1049/2001, which makes a very clear distinction between an ongoing decision-making process and a finalised one, and the possibility to protect the correspondent documents of each of these processes. If the Commission’s reasoning were to be accepted, any decision-making process could be considered as “ongoing” due to the possibility of adopting amendments at some point in the future.

In any case, the Applicant contends that this represents a very broad and vague justification which cannot support the application of the exception from disclosure provided under neither of the subparagraphs of Article 4(3) of Regulation 1049/2021 as it falls short of the legal test established by the Court of Justice and Article 4(3) of Regulation 1049/2001 itself.

Firstly, the Applicant strongly disagrees with the Commission’s statements that the Member States’ and the Commission’s representatives involved in the TAC 2022 discussions “have the legitimate expectation that they would not be public” and that “the documents were drafted for internal purposes”. There is no such general concept of “internal document” which can be automatically protected from disclosure and such reasoning is not in accordance with the EU primary law and the CJEU case-law. As the CJEU previously concluded that "the public right of access to documents of the institutions is related to the democratic nature of those institutions." (C 280/11 P Council v Access Info Europe, para. 27 and the case law cited.) This is also enshrined in primary EU law.

According to Article 1 second paragraph of TEU, the EU is a legal order characterised as an "ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen". Moreover, Article 15(1) TFEU provides that the institutions, bodies, offices and agencies of the European Union are to conduct their work as openly as possible. Other very important sources of law that oblige EU institutions to respect this principle of openness are Article 10(3) TEU, Article 298(1) TFEU and Article 42 of the Charter of Fundamental Rights of the European Union (C-213/15 P Commission v Breyer, para. 52).

In addition to this, it is the settled case law of the Court of Justice that the exceptions in Article 4 of Regulation 1049/2001 "must be interpreted and applied strictly" because they "depart from the principle of the widest possible public access to documents." (See inter alia, C‑64/05 P Sweden v Commission, para. 66, C‑506/08 P Sweden v MyTravel and Commission, para. 75 and C-60/15 P Saint-Gobain Glass v Commission, para. 63). Thus, “[t]he mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception”. (Case T-51/15 PAN Europe v Commission, para. 22).
According to the Court, “if an EU institution hearing a request for access to a document decides to refuse to grant that request on the basis of one of the exceptions laid down in Article 4 of Regulation No 1049/2001, it must, in principle, explain how access to that document could specifically and actually undermine the interest protected by that exception. Moreover, the risk of the interest being so undermined must be reasonably foreseeable and must not be purely hypothetical.” (C 280/11 P Council v Access Info Europe, paras 30 and 31 and the case-law cited).

Specifically related to the application of the exceptions in Article 4(3) of Regulation No. 1049/2009, in order for the decision-making process to be covered by this exception, it must be seriously undermined, as provided by Article 4(3) of Regulation 1049/2001 itself.

Analysing the wording of the Decision in light of the cited case law above, it is beyond doubt that the Commission gives insufficient reasons to justify withholding the Requested Documents based on Article 4(3) Regulation 1049/2001. No specific reason (let alone evidence of such) is provided in relation to what is the actual or foreseeable and specific risk that the decision-making process would be undermined by the disclosure of the Requested Documents. Any potential impacts of disclosure on the decision-making procedure therefore remain purely hypothetical.

The Commission’s Decision further does not give adequate weight to the fact that the Requested Documents are legislative documents. As the Court has held in Case C-57/16 ClientEarth v Commission: “[…] it should be borne in mind that recital 6 of Regulation No 1049/2001 indicates that wider access should be granted to documents in cases where the EU institutions are acting in their legislative capacity. The possibility for citizens to scrutinise and be made aware of all the information forming the basis for EU legislative action is a precondition for the effective exercise of their democratic rights as recognised, in particular, in Article 10(3) TEU (see, to that effect, judgments of 1 July 2008, Sweden and Turco v Council, C 39/05 P and C 52/05 P, EU:C:2008:374, paragraph 46, and of 17 October 2013, Council v Access Info Europe, C 280/11 P, EU:C:2013:671, paragraph 33). As is emphasised, in essence, by ClientEarth, the exercise of those rights presupposes not only that those citizens have access to the information at issue so that they may understand the choices made by the EU institutions within the framework of the legislative process, but also that they may have access to that information in good time, at a point that enables them effectively to make their views known regarding those choices.”

Nor did the Commission give adequate weight to the fact that the Requested Documents contain environmental information. In accordance with Art. 6(1) Regulation 1367/2006, “the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure.” According to the Court of Justice, the requirement to restrictively interpret this exception "is all the more compelling where the documents communication of which is requested contain environmental information." (C-60/15 P Saint-Gobain Glass v Commission, para. 78). Accordingly, the justification for non-disclosure provided by the Commission should have equally been more compelling.

2.2 THERE IS AN OVERRIDING PUBLIC INTEREST IN DISCLOSURE OF THE REQUESTED DOCUMENTS

Without prejudice to the foregoing, the Requested Documents should also be disclosed based on an overriding public interest in disclosure. Contrary to what is stated in the Decision, an overriding public interest in disclosure exists.

It follows from the case law of the Court of Justice that the overriding public interest capable of justifying the disclosure of a document must not necessarily be distinct from the principles which underlie Regulation 1049/2001 (Joined cases C-514/11 and C-605/11, LPN and Finland v Commission, ECLI:EU:C:2013:738, paragraph 92 ; Joined cases C-39/05 P and C-52/05 P, Sweden and Turco v Council, ECLI:EU:C:2008:374, paragraphs 74-75). The Court of Justice has confirmed the General Court’s approach in the case Sweden v API and Commission, according to which the invocation of the principle of transparency “may, in the light of the particular circumstances of the case, be so pressing that it overrides the need to protect the documents in question”. (Joined cases C-514/07 P, Sweden and others v API and Commission, ECLI:EU:C:2010:541, paragraphs 152-153) In addition, the Court of Justice has also held that the specific circumstances justifying the disclosure of documents must be set out, and that purely general considerations are not an appropriate basis for establishing that an overriding public interest prevails. (Joined cases C-514/11 and C-605/11, LPN and Finland v Commission, ECLI:EU:C:2013:738, paragraphs 93 and 94).

The Applicant submits that the specific circumstances of this case are such that the need for the public to have access to the Requested Documents at the current moment is so pressing as to justify their disclosure. The annual decision-making procedure of fixing the fishing limits has far-reaching consequences on the environment as well as on those depending on the sustainable use of marine living resources. The EU has already missed the legally binding deadline to end overfishing by achieving the Maximum Sustainable Yield (MSY) exploitation rate by 2020 at the latest for all stocks, as required by Art. 2(2) of the CFP Basic Regulation. Overfishing continues to be a major issue, with many stocks outside safe biological limits, and despite some long-term progress, many TACs are still set above the best available scientific advice. It is therefore in the public interest of EU citizens to know the positions that their democratically elected leaders take at the EU level and the opinions of the Commission’s representatives on this matter and according to Article 4(3) this public interest should be deemed as overriding the need to protect the closed decision making process regarding TACs for 2022.

3. MISAPPLICATION OF THE EXCEPTION IN ARTICLE 4(1)(a) 3rd INDENT OF REGULATION 1049/2021 PROTECTING EU’S INTERNATIONAL RELATIONS

As regards the non-disclosure of the Requested Documents on the basis of the application of the exception from disclosure protecting the international relations provided under Article 4(1) 3rd indent of Regulation 1049/2001, the Commission states that: “Some parts of the requested documents reflect considerations on the negotiation strategies used by the European Union in its discussions with international partners on topics that are recurring on a yearly basis in bilateral and multilateral settings. In this context, an atmosphere of trust and confidentiality is a prerequisite for a successful completion of the negotiations with the country/ies concerned in the perspective of agreeing on fishing opportunities. A breach of that trust would jeopardise the relations between the European Union and the countries concerned”.

This also represents a very broad and vague justification which cannot support the application of the exception from disclosure provided under Article 4(1)(a) 3rd indent of Regulation 1049/2021 as it falls short of the legal test established by the Court of Justice and Article 4(1) of Regulation 1049/2001 itself.
The CJEU has clarified that the EU institution’s discretion in applying this exception is limited by the following requirements: “ 51. […] the mere fact that a document concerns an interest protected by an exception to the right of access laid down in Article 4 of Regulation No 1049/2001 is not sufficient to justify the application of that provision.
[…]
64. […] where the institution concerned refuses access to a document the disclosure of which would undermine one of the interests protected by Article 4(1)(a) of Regulation No 1049/2001, that institution remains obliged, as noted in paragraph 52 of the present judgment, to explain how disclosure of that document could specifically and actually undermine the interest protected by an exception provided for in that provision, and the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical.” (Case C 350/12 P, Council of the European Union v Sophie in ’t Veld paras. 51 and 64 and the case law cited).

The same conclusion has been recently reached again by the CJEU in Case C 348/20 P, Nord Stream 2 AG v Council of the EU and EU Parliament: “ Thus, the Court has held, as regards Article 4 of Regulation No 1049/2001, that the mere fact that a document concerns an interest protected by an exception to the right of access laid down in that provision is not sufficient to justify the application of that provision and that the institution concerned is obliged to explain how disclosure of that document could specifically and actually undermine that interest, irrespective of the fact that that institution has a wide discretion in applying the third indent of Article 4(1)(a) of Regulation No 1049/2001” (para. 144).

The Commission in the Decision neither provides a plausible explanation as to how disclosure of the Requested Documents would specifically and actually undermine the protection of EU’s international relations, nor how the risk of that undermining could be considered as reasonably foreseeable and not purely hypothetical.

The Commission only invokes hypothetical risks as to the impact on the relations with “international partners” without providing any concrete explanations as to what reasonably foreseeable effect the release of any of the specific Requested Documents would have. The Commission merely makes general and vague references which could apply to any context in which the EU is negotiating internally on matters that have implications for third parties.

If the Commission’s reasoning was accepted, essentially any document related to the decision-making on the TAC Regulation would become exempted from disclosure indefinitely, including any historical information. This follows from the fact that the Commission applies the exception to documents that relate to a decision-making procedure that is already closed. This would also have far-reaching implications for documents in many other policy areas, given that many of the policy decisions of the EU impact on other countries which are not members of the EU. The transparency regime under Regulation 1049/2001 can then not fulfil its purpose.

Furthermore, for the application of this exception from disclosure, the Commission did not take into account the fact that the Requested Documents represent legislative documents and that they contain environmental information, as demonstrated under section 1 above. As already shown above under section 2, exceptions from disclosure need to be strictly applied when legislative documents and environmental information is involved, including for the protection of the international relations.

Moreover, the fact that the Requested Documents contain to environmental information required the Commission to take into account the public interest served by disclosure, as provided by Article 6(1) second subparagraph of Aarhus Regulation. As mentioned above in section 2.2., the fact that the Requested Documents relate to a process which should lead (and should have led in 2020) to the end of the environmental crisis of overfishing in EU waters makes it in the public interest to disclose them. The Commission should therefore have balanced this public interest in disclosure against the interest in withholding the information when assessing whether Article 4(1)(a) 3rd indent of Regulation 1049/2021 applied to the Requested Documents.

The Commission has therefore clearly failed to demonstrate that disclosure would specifically and actually undermine the EU’s international relations and that the risk is reasonably foreseeable and not purely hypothetical. It has instead applied a broad and generic exception, which does not comply with the requirement that the exceptions are to be applied narrowly as set out in the Court’s case law, let alone with the requirement of particularly wide access in relation to legislative documents that contain environmental information. As a result, the Commission has misapplied Article 4(1)(a) 3rd indent of Regulation 1049/2001.

4. FAILURE TO STATE REASONS AS REQUIRED BY ART. 296 TFEU

The failure to demonstrate that the exception under Article 4(3) and under Article 4(1)(a)3rd indent of Regulation 1049/2001 applied, above mentioned in section 2 and 3, coincides with a failure to provide reasons.

In the specific context of a request for access to documents, the duty to state reasons in Article 296 TFEU entails that if an institution decides to refuse access to a document which it has been asked to disclose, it must provide a statement of reasons "from which it is possible to understand and ascertain, first, whether the requested document does in fact fall within the sphere covered by the exception relied on and, second, whether the need of protection relating to that exception is genuine." (Case T-796/14, Philip Morris Ltd v Commission, para. 31 and the case law cited).

As explained above, the statement of reasons was broad and generic; it does not enable the Applicant, nor would it enable the Court, to assess whether the individual Requested Documents fall within the sphere of the exceptions applied, nor whether the need of protection is genuine. The Commission also gives no evidence of having considered that the Requested Documents amount to legislative documents and contain environmental information. The Commission should have explained how these facts featured in its decision. This should have included an explanation of how it has taken the public interest in disclosure into account, as required by Art. 6(1) Regulation 1367/2006. The absence of these explanations amounts to a failure to state reasons. The Commission therefore breached the obligation to state reasons under Article 296(2) TFEU and Article 41 TFEU.

REQUEST FOR PRO-ACTIVE DISCLOSURE

35. Finally, we request that the Requested Documents be made publicly available on the Commission’s documents register, in accordance with Articles 11 and 12 of Regulation 1049/2001 and Article 4 of Regulation 1367/2001.

Yours faithfully,
Madalina Popirtaru
Environmental Democracy Lawyer, ClientEarth AISBL
60 Rue du Trône (3rd floor), Box 11, Ixelles, 1050, Brussels, Belgium

Dear SG ACCES DOCUMENTS,

Thank you for your reply.

For the express delivery of the response, please use ClientEarth AISBL contact details, including the phone number, which I include below:

Phone number: 02 808 34 65. Address: 60 Rue du Trône (3rd floor), Box 11, Ixelles, 1050, Bruxelles, Belgium.
Please mention on the envelope that it is for the attention of Madalina Popirtaru, Environmental Democracy Lawyer.

In addition to sending the formal response by express delivery, we respectfully ask to upload it on this platform as well (especially as the request for access to documents was transmitted by using the platform) as this would ensure full transparency as regards the manner in which the request was handled, which is in accordance with Article 15(1) of TEU.

Yours sincerely,
Madalina Popirtaru

Dear SG ACCES DOCUMENTS,

Considering that the deadline for providing us a confirmatory response had passed, could you please let us know when we should expect your answer?

Yours sincerely,
Madalina Popirtaru

Dear SG ACCES DOCUMENTS,

Considering the fact that we still have not received an answer to our confirmatory application, we would like to respectfully ask you when do you envisage to send us your response?

Yours sincerely,
Madalina Popirtaru

Dear [email address],
I confirm receiving you response

Madalina Popirtaru