Teosinte in Spain II
The request was successful.
From: Andreas Pavlou
Dear Health and Food Safety,
Under the right of access to documents in the EU treaties as developed in Regulation 1049/2001, as well as on the application of the provisions of the Aarhus Convention, I am requesting documents which contain the following information:
Any minutes of meetings, analyses and reports (produced and/or received by EU bodies), emails and/or other communications related to the presence of teosinte (Zea mays spp) in Spain and in the European Union.
I have made a separate request to my other recently submitted request as here, I am asking for all other information that is not mentioned in Ares (2016) 2701336 – 10/06/2016.
Calle Cava de San Miguel 8, 4c,
28005 Madrid Spain
Health and Food Safety
Dear Mr Pavlou,
Thank you for your email dated 01/09/2016, in which you requested access to "[a]ny minutes of meetings, analyses and reports (produced and/or received by EU bodies), emails and/or other communications related to the presence of teosinte (Zea mays spp) in Spain and in the European Union".
We hereby acknowledge receipt of your application for access to documents, which was registered today (01/09/2016) under reference number GestDem 2016/4845.
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 22/09/2016.
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
SANTE ACCESS TO DOCUMENTS
DG Health and Food Safety (SANTE)
Email: [DG SANTE request email]
Health and Food Safety
Please find enclosed a letter and its attachements, adressed to Andreas
Pavlou, duly signed by Ms Chantal Bruetschy, European Commission, DG for
Health and Food Safety.
Directorate-General for Health and Food Safety
Food and feed safety, innovation
Rue Breydel 4
Health and Food Safety
Dear Mr Pavlou,
Please find enclosed an advance copy of our reply to your request for
access to documents 2016/4842 and 2016/4845, together with its enclosures.
The original version of the reply will be sent to you by registered letter
with acknowledgement of receipt. Please note that the enclosures are
transmitted only by e-mail.
Unit E3 Biotechnology
From: Andreas Pavlou
Dear Health and Food Safety/Secretariat General,
Following my requests (GestDem 2016/4842 and 2016/4845) for access to documents of 1 September 2016 to Directorate General for Health and Food Safety (hereinafter “DG SANTE” or “the DG”), I am hereby submitting a confirmatory application in accordance with Article 7(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (hereinafter “Regulation 1049/2001” or “the Regulation”).
I. FACTUAL BACKGROUND
On 1 September 2016 I requested, via the AsktheEU.org portal, full access to documents referred to in the letter sent by DG SANTE to the European Food Safety Authority (Ref Ares (2016)2701336 – 10/06/2016) as well as any minutes of meetings, analyses and reports (produced and/or received by EU bodies), emails and/or communications related to the presence of teosinte in Spain and the European Union.
The DG acknowledged receipt of the applications (GestDem 2016/4842 and 2016/4845) and I received an answer to both requests in the DG’s Decision, on 11 October 2016.
In its reply, the DG identified 65 documents falling under the scope of my requests – 34 were disclosed fully, 29 partially, and access to 2 of these documents was refused.
Four of the 65 documents identified were partially disclosed (named “Document 14”, “Document 16”) or refused (named “Document 22”, “Document 17”) following the application of Article 4(3) of Regulation 1049/2001 on the protection of the decision-making process. In this confirmatory application, I contest the application of this exception to the four documents named.
I note that two of these four documents also had an exception applied to protect personal data (Article 4(1)(b)), but I am not contesting the parts of the documents covered by this particular exception.
The requests and their full histories can be found here: https://www.asktheeu.org/en/request/teos... and https://www.asktheeu.org/en/request/teos...
II. SUBSTANTIVE ASSESSMENT
It should be stated at the outset that, in accordance with recital 11 of Regulation 1049/2001, the general principle is that “all documents of the institutions should be accessible to the public.” The burden is therefore on the institution to prove to the requisite legal standard that full disclosure of the four documents at issue —as regards documents relating to a matter where the decision has not been taken by the DG/Commission —would seriously undermine the DG/Commission’s decision-making process (Article 4(3) of the Regulation).
It has been established by the Court of Justice that the reasons for any decision based on the exceptions of Article 4 of the Regulation must be stated by the institution. If an institution decides to deny full access to a document, it must explain two things:
“first, how access to that document could specifically and effectively undermine the interest protected by an exception laid down in Article 4 of Regulation No 1049/2001 relied on by that institution and, secondly, in the situations referred to in Article 4(2) and (3) of that regulation, whether or not there is an overriding public interest that might nevertheless justify disclosure of the document concerned”.
It will first be argued that full access to the four documents in question does not undermine the institution’s decision-making process. In the alternative, if it were to be regarded that disclosure would undermine the given interest (which I argue is not the case), there would nevertheless be an overriding public interest in fully disclosing the documents.
II.i. Access to the documents does not specifically and effectively undermine the institution’s decision-making process
As above, the institution and French authorities have failed to explain how exactly full disclosure of Document 14 and Document 17 could specifically and effectively undermine its decision-making process. The institution reasons that the French authorities said the emails were “part of deliberations and preliminary consultations” linked to the ongoing process of authorisation of three genetically modified maize crops. The fact that a process is still ongoing in itself is not enough to warrant the application of Article 4(3).
The institution later reasons that the French authorities “underlined the acute sensitivity of the issue of genetically modified organisms in Member States in general and in France in particular”. Acknowledging that there is a pre-existing public debate that may hold views contrary to the views of decision makers, about the cultivation of genetically modified organisms, in itself does not constitute an adequate reason that explains how disclosure of the documents in full would lead to a specific and effective undermining of the decision-making process in question to authorise the cultivation of maize crops MON810, Bt11 and 1507.
The institutions also failed to demonstrate the specific and effective undermining of the decision-making process with regards the partial disclosure of Document 16 and non-disclosure of Document 22. The institution states that disclosure would “put into the public domain internal, preliminary views exchanged in the preparation of the aforementioned draft authorisations. It would thus unduly expose the Commission’s internal deliberative process, including the disclosure of opinions which were considered but not retained in the texts submitted to the Standing Committee. This would severely reduce the Commission’s room for manoeuvre in the ongoing discussions in the Standing Committee and its ability to facilitate a compromise.” It is not made clear how the Commission would have a reduced space for manoeuvre, as the institution will surely have good reasons behind the selection of opinions that were included in the texts submitted to the Committee. If anything, public access to these documents would provide the Commission with a stronger negotiating position as it would be clear to the public that it has already assessed the various opinions and filtered out those which would not be of any value to the decision-making process. Knowing all the possible opinions also means the Standing Committee can be sure that the information it has received in order to take a decision has been fully assessed and that they are in the position to take a decision as they are in full possession of all the information they need. Such input enriches the internal discussions and does not prevent public officials from reaching conclusions as to what is in the public interest in a professional and independent manner.
Consequently, the Commission has not established that access to each of the four documents at issue could specifically and effectively undermine its decision-making process.
II.ii. There is an overriding public interest in disclosure
As stated above, this is an alternative argument, in that even if it were to be regarded that disclosure would undermine the given interest, there would nevertheless be an overriding public interest in fully disclosing the documents.
First, there is a specific overriding public interest over the cultivation of these specific maize varieties because the Spanish authorities only allowed the cultivation of MON810 on the assumption that there was no potential for gene transfer because the genetically engineered maize did not have any sexually compatible wild relatives in Europe (letter from the Spanish Biosafety Commission Opinion on the Environmental Risk Assessment and Monitoring Plan on Application EFSA-GMO-RX-MON810, sent on 6 November 2008).
The fact there may now be wild varieties of maize in Europe means there is a clear overriding public health and environmental interest in having the documents disclosed in full.
Second, as party the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (hereinafter, “Aarhus convention”) the European Union and Member States are committed, “to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment,” and particularly, “the concern of the public about the deliberate release of genetically modified organisms into the environment and the need for increased transparency and greater public participation in decision-making in this field.” This also provides an overriding public interest and legal obligation on the institutions to disclose in full the documents requested which contain information on this particular environmental matter. 
Judgements from the Court of Justice of the European Union also establish specifically that with regards the cultivation of genetically modified organisms, “information concerning the environmental risk assessment may not be kept confidential. Furthermore, a Member State cannot invoke an exemption provision provided for by the directives on freedom of access to environmental information in order to refuse access to information which should be in the public domain.” This, along with the precautionary principle on genetically modified organisms and the risks to the environment and human health, clearly explains and gives reasons for an overriding public interest in the disclosure of the documents contested in this confirmatory application. 
Thus, evidence that the possibility exists for cross-fertilization, as well as obligations and priciples established by the Aarhus convention means that there is a clear overriding public interest in, as required by Regulation 1049/2001, full access to the information contained in Documents 14, 16, 17, and 22.
In light of the arguments above, I hereby request full access to the four documents named as “Document 14,” “Document 16,” “Document 17,” and “Document 22”.
 “In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution's reply, make a confirmatory application asking the institution to reconsider its position.”
 Judgment of 1 July 2008 in Sweden and Turco v Council, C-39/05 P and C-52/05 P, EU:C:2008:374, at 48.
 Ibid. at 49.
 Commune de Sausheim v. Pierre Azelvandre http://curia.europa.eu/en/actu/communiqu...