TTIP documents

The request was refused by Trade.

Dear Trade (TRADE),

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, and following today’s statement by European Commission President-elect, Jean Claude Junker, who committed to enhanced transparency towards citizens and the European Parliament during all steps of the Transatlantic Trade and Investment Partnership (TTIP) negotiations, I am requesting the following:

1. Documents that contain the proposals made during TTIP negotiations,

2. Agendas and minutes of meetings between EU representatives and third parties on TTIP,

3. Agendas and minutes of meetings between representatives of the EU and the USA on TTIP,

4. Full lists of participants referred to in points 2 and 3 above,

5. Inter-institutional communications, including emails, about TTIP proposals,

6. Copies of documents submitted by third parties with regards to these negotiations, particularly those which contain specific policy recommendations,

7. Other documents containing information on proposals that have not been published online (http://ec.europa.eu/trade/policy/in-focu...).

Yours faithfully,

Andreas Pavlou

Dear Andreas Pavlou,

Thank you for your request for access to documents. Unfortunately you have not indicated your postal address that is required for registering and handling your request in line with the procedural requirements. Please send us your full postal address at your earliest convenience. Pending your reply, we reserve the right to refuse the registration of your request.

You may, of course, use directly the electronic form for entering your request:
http://ec.europa.eu/transparency/regdoc/...

In addition, the description given in your application does not enable us to identify concrete documents which would correspond to your request.
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, persons or bodies who drafted the documents etc…
If you need assistance in clarifying or specifying your application, you can contact me

Thank you in advance for your understanding.

Yours faithfully,

Indre 

Access to Documents
European Commission
DG TRADE
Unit A3 - Information, communication and civil society
CHAR 7/233
B-1049 Brussels/Belgium

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Dear Indre,

Thank you for your quick reply.

If I chose to not provide my postal address, since you have a contact email address for me, am I to assume that you will outright reject my application for access to EU documents?

Yours faithfully,

Andreas Pavlou

Dear Andreas ,

On 1 April 2014, the submission of a postal address became a mandatory feature for the purpose of introducing a request for access to documents. Pending the submission of a valid, real and personal postal address your application will not be handled.

The decision to ask for a postal address from applicants for access to documents was triggered by the following considerations:

• The need to obtain legal certainty as regards the date of receipt of the reply by the applicant under Regulation 1049/2001. Indeed, as foreseen by Article 297 of the Treaty on the Functioning of the European Union (TFEU), […] decisions which specify to whom they are addressed, shall be notified to those to whom they are addressed and shall take effect upon such notification. Replies triggering the possibility for administrative or judicial redress are therefore transmitted via registered mail with acknowledgement of receipt. This requires an indication of a valid postal address by the applicant;

• The need to direct the Commission's scarce resources first of all to those requests which have been filed by "real" applicants. With only a compulsory indication of an e-mail address, applicants can easily introduce requests under an invented identity or under the identity of a third person. Asking for a postal address helps the Commission to protect the administration, as well as other citizens and legal persons, from abuse;

• For similar reasons, asking for a compulsory indication of a postal address enables the Commission services to verify whether Article 6(3) of the Regulation, on voluminous requests, is being evaded by introducing several requests under different identities. Indeed, in its Ryanair judgment, the General Court confirmed that Article 6(3) cannot be evaded by splitting the application into a number of applications. The Commission would like to point out that, in 2012/2013, it received some 57 confirmatory requests from what it suspects to be one single applicant operating under 13 different identities;

• Knowing whether the applicant is an EU resident in the sense of Article 2(1) of Regulation 1049/2001 is a precondition for the purpose of correctly applying the exception in Article 4(1)(b) of Regulation 1049/2001 (protection of the privacy and integrity of the individual), which has to be interpreted in accordance with Data Protection Regulation 45/2001. Article 9 of Regulation 45/2001 requires the adequacy of the level of protection afforded by the third country or international organisation when transmitting personal data to third-country residents or legal persons. It follows that, in case of requests for documents which include personal data, the correct application of the data protection rules cannot be ensured in the absence of a postal address enabling the Commission to ascertain that the minimum data protection standards will be respected.

All of these considerations show that the request for and the consequent processing of a real and personal postal address is not only appropriate but also strictly necessary for the performance of a task carried out in the public interest within the meaning of Article 5 (a) of Data Protection Regulation 45/2001, namely providing a smooth and effective access to documents.

We therefore kindly urge you to please provide a real and valid postal address, so as to enable us to duly register and deal with your initial application for access to documents in the meaning of Article 6(1) of Regulation 1049/2001. The deadline for handling your initial request shall run as from the moment of the registration of your request following the submission of a real, personal and valid postal address.

Thank you in advance,

Indre

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Dear Ms. Indre Vaicekauskaite,

Thank you for your response, in which you ask for my postal address, which you state is a "mandatory feature for the purpose of introducing a request for access to documents".

I would like to note that the right of access to EU documents is a fundamental right enshrined in Article 42 of the Charter of Fundamental Rights and set out in Article 15 of the Treaty on the Functioning of the European Union. My request was made in exercise of that right.

Article 15 of the TFEU makes clear that the principles for and limits on exercise of the right of access to documents “shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure” and that any Rules of Procedure adopted by the institutions, bodies, offices and agencies of the EU must be “in accordance with [these] regulations.” The Regulation currently in force is Regulation 1049/2001.

According to Regulation 1049/2001, the only things which may be "required" of an applicant in order for a request to be registered are found in Article 6.1, which includes an exhaustive list: applications must be made in "any written form", in one of the official languages, and in a "sufficiently precise manner to enable the institution to identify the document". I have met all of these requirements.

At no point does the Regulation mention that the requester must provide his or her postal address before the request can even be registered.

Indeed, since it was adopted in 2001, many requesters have exercised the right to documents under this Regulation without the need to provide a postal address.

I hereby challenge your assertion that it is strictly necessary to collect my postal address, within the meaning of Article 5 (a) of Data Protection Regulation 45/2001, in order to provide a “smooth and effective” access to documents, for the reasons set out below.

1. Notification

It is correct that Article 297 of the Treaty on the Functioning of the European Union (TFEU), specifies that decisions “shall be notified to those to whom they are addressed and shall take effect upon such notification.” The question here is what is a valid form of notification and whether such notification only applies to only refusals or other responses as well.

With respect to the form of notification, I note that email is considered a valid form of communication for access to information responses in many jurisdictions around Europe. If greater certainty is required, some EU agencies such as the European Medicines Agency make use of an electronic confirmation of delivery system (with a link to be clicked by the recipient, akin to signing for a registered letter). I wonder whether DG Trade has considered such as system?

With respect to which answers might need to be delivered by registered mail, it is clear that any and all responses to access to documents requests could potentially lead to administrative or judicial redress. I wonder whether you have now adopted a policy whereby DG Trade sends every single answer to an access to documents request by registered mail to the postal address of the applicants? This is a particularly important question given the Commission’s scarce resources, of which you rightly make mention.

2. Identity of Real Persons

You state the provision of a postal address is triggered by the “need to direct the Commission's scarce resources first of all to those requests which have been filed by ‘real’ applicants.”

I note first of all that given that the only source of emails directed European Commission is likely to be a human being of some kind or other, one could presume that requests only come from “real” people in that sense.

The provision of a postal address, however, provides no more certainty of the identity of the requester than simply an email. This is because, without requiring submission of supporting documents such as ID cards, utility bills, rental contracts, or ownership titles to the property, driving licences, bank statements, etc., it is not possible for the European Commission to ascertain whether the address is the residence of that person. There is also the question of what happens if someone uses a work address, which in many jurisdictions is a valid option for receipt of legal and other documents: would you also require the employment contract of the person making the request?

I also wish to question how the European Commission would ensure via postal addresses that a requester is "real"? Often many people live at a single property as families, friends or renters for example, which means they share an address. At what point would a European institution be able to verify a "real" requester from a "non-real" requester via someone's postal address? How many names would need to come from a single postal address to start questioning whether it is a “real” person?

It is clear that to establish beyond doubt that the requester is who they say they are, a postal address is not sufficient. It is also clear that to do so would require investment of a large amount of resources, something you have mentioned the EU Commission does not have, and would place a significant burden on the requesters being required to prove their identity. Such processes do not seem to be consistent with ensuring “smooth and effective” access to documents.

Furthermore, a subjective judgement about the "real"-ness of a requester, rather than treating all requests equally, does not appear to be good administrative practice particularly in the exercise of a fundamental human right.

In addition, if an applicant wishes to seek legal redress, for example by taking a case to the European Court of Justice, at that point they would need to identify themselves (along with other requirements such as having an independent legal representative, signing a power of attorney, etc.,). This is something which the applicant can address at the point of making the appeal, rather than the Commission placing an undue burden on all requesters at the outset.

3. Splitting Requests

In line with considerations I have set out above, it does not seem that the European Commission can ensure with any degree of certainty from simply asking for postal addresses that a request is not being split up by a requester. What certainty could the EC have that a single requester is not using thirteen different postal addresses along with thirteen different names?

The question here is also whether such an unusual and most likely very rare case is the best basis for establishing the European Commission’s entire access to documents policy and seems to be at odds with the requirements of Article 15 of Regulation 1049/2001 which contains an explicit reference to the need to "develop good administrative practices in order to facilitate the exercise of the right of access guaranteed by this Regulation."

The refusal to register a request if the citizen involved does not provide a postal address is contrary to the principles of good administration which require that officials “shall in particular avoid restricting the rights of the citizens … when those restrictions … are not in a reasonable relation with the purpose of the action pursued” (Code of Good Administrative Behaviour, Article 6).

Delaying registering a request for want of a postal address in the 21st Century when emails are a common means of communicating with public administrations is an unnecessary impediment. It also serves to delay the processing of requests sent to the institutions, which constitutes an unreasonable and disproportionate impediment to the exercise of the fundamental right of access to EU documents.

4. Personal Data Protection

It is correct current European Court of Justice jurisprudence makes clear that when a refusal for some data contained in a requested document is being considered under Article 4(1)(b) of Regulation 1049/2001, this exception should be interpreted in accordance with Regulation 45/2001.

This should done irrespective of the postal address or country of origin of the applicant. Hence to the extent that the documents I have requested contain personal data which might be withheld, my postal address is not needed.

In conclusion, and in order to ensure “smooth and effective” access to documents, I respectfully request that you register and process my request in line with my right of access to European Union documents as set out in the EU Treaties.

Yours Sincerely,

Andreas Pavlou

Mail Delivery System,

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Sent a follow up to Trade again.

Dear Mr Pavlou,

Thank you for your e-mail.
Due to the absence of my colleague I try to answer your questions related to Access to Documents:
Notifications are sent for any type of reply, positive and negative. In case of negative reply the letter is sent both by mail and registered mail. Your proof of receipt is the way you, the EC and other Institutions have, to prove you received the reply.
Since 01/04/2014 requestors are asked to prove their postal address, indeed , before this date, requests were accepted without it. The reasons have been previously explained.
DG TRADE takes into consideration only measures prescribed by Secretariat General.
Yes, DG Trade sends every single negative answer to an access to documents request by registered mail to the postal address of the applicant.
The Commission does not require personal data which are excessive in relation to the purpose for which such data are collected and further processed, and considers that the request for the postal address of the individual lodging the request for access to documents pursuant to Regulation (EC) 1049/2001 is not in breach of the Data Protection Regulation.
We kindly remind you that you can also request access to documents through the Register of Commission Documents : http://ec.europa.eu/transparency/regdoc/...

Thank you,

Access to Documents
European Commission
DG TRADE
Unit A3 - Information, communication and civil society
B-1049 Brussels/Belgium

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1 Attachment

Dear Andreas,

In addition to the email that you have received from my colleague during my absence I would like to share with you a recent decision of European Data Protection Supervisor on a complaint against European Commission relating to the requests for a postal address while dealing with access to documents requests lodged pursuant to Regulation 1049/2001.

I believe, that you can find an answer to some of the arguments that you have put forward in your email of 05/08/2014, in the attached decision.

In addition, please take note that SG Transparency Unit (B4) is in charge of coordinating policy as regards the implementation of Regulation 1049/2001, therefore I would suggest you contact them directly if you have any further questions or remarks on this matter.

And once again, I kindly invite you to provide us with a real and valid postal address, which would enable us to register and deal with your application for access to documents in the meaning of Article 6(1) of Regulation 1049/2001.

I wish you a very nice evening,
Indre.

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