Ref. Ares(2022)5039016 - 11/07/2022
EUROPEAN COMMISSION
SECRETARIAT-GENERAL
Directorate D - Twin Transition, Economic & Social Affairs
SG.D.1 - Digital Transition, Industry & Single Market
Brussels
SG.D.1/TKV
Nienke Palstra
Global Witness
Rue Belliard 53
1000 Brussels
Belgium
By email:
ask+request-11305-
xxxxxxxx@xxxxxxxx.xxx
ask+request-11307-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your applications for access to documents – GESTDEM 2022/3050
and GESTDEM 2022/3051
Dear Ms Palstra,
We refer to your emails of 24 May 2022 in which you make two requests for access to
documents pursuant to 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’), registered on 25 May
2022 under the above-mentioned reference numbers. We further refer to our emails of 20
and 21 June 2022 informing you about the extension of the deadline, our references
Ares(2022)4521789 and Ares(2022)4546391.
By your application, you request access to:
All documents—including but not limited to correspondence, emails, minutes,
notes (hand written or electronic), audio or video recordings, verbatim reports,
operational conclusions, lines to take, briefings, and presentations—related to:
1. the meeting on 2022-05-18 between Penelope Papandropoulos and Werner
Stengg and Microsoft Corporation. [GESTDEM 2022/3050]
2. the meeting on 2022-05-18 between Margrethe Vestager and Microsoft
Corporation. [GESTDEM 2022/3051]
We have identified the following documents responsive to your requests:
1. Ares(2022)3979173 - Briefing Microsoft Trade and technology council
2.
Ares(2022)3557024 - Incoming meeting request Microsoft 18 May_Redacted
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
3. Ares(2022)3768777 - positive reply Microsoft 18 May_Redacted
4. Ares(2022)3979173 - Briefing Microsoft AI_Redacted
5. Ares(2022)3979173 - Briefing Microsoft Cloud_Redacted
6. Ares(2022)3979173 - Briefing Microsoft Cybersecurity_Redacted
7. Ares(2022)3979173 - Briefing Microsoft Digital Services Act_Redacted
8. Ares(2022)3979173 - Briefing Microsoft Legislation on child sexual
abuse_Redacted
9. Ares(2022)3979173 - Briefing Microsoft RRF_Redacted
10. Ares(2022)3979173 - Briefing Microsoft Steering brief_Redacted
11. Ares(2022)3979173 - Briefing Microsoft Table of contents_Redacted
12. Ares(2022)4212038_Minutes from mtg Microsoft - CAB Vestager -
180522_Redacted
With regard to the documents identified, a complete disclosure is prevented by the
exception concerning the protection of privacy and the integrity of the individual outlined
in Article 4(1)(b) of Regulation (EC) No 1049/2001, because they contain the following
personal data:
- the names/initials and contact information of Commission staff members not
pertaining to the senior management;
- the names/initials and contact details of other institutions or natural persons.
Article 9(1)(b) of the Data Protection Regulation (Regulation 2018/1725) does not allow
the transmission of these personal data, except if you prove that it is necessary to have
the data transmitted to you for a specific purpose in the public interest and where there is
no reason to assume that the legitimate interests of the data subject might be prejudiced.
In your request, you do neither express any particular interest to have access to these
personal data, nor put forward arguments to establish the necessity to have the data
transmitted for a specific purpose in the public interest.
Moreover, some of the documents include information on Commission procedures that
are currently ongoing and their disclosure could undermine the process concerned. As a
result, complete disclosure of these documents is prevented by the exception to the right
of access laid down in Article 4(3) of Regulation (EC) No 1049/2001.
Furthermore, some of the documents contain information related to commercial interests of
a natural or legal person, which has also been redacted as its disclosure is prevented by the
exception to the right of access laid down in the first subparagraph of Article 4(2) of
Regulation (EC) No 1049/2001. Please note that documents originating from third parties
are disclosed to you based on Regulation (EC) No 1049/2001. However, this disclosure is
without prejudice to the rules on intellectual property, which may limit your right to
reproduce or exploit the released documents without the agreement of the originator, who
may hold an intellectual property right on them. The European Commission does not
assume any responsibility from their reuse.
Finally, document 1 contains information of ongoing international negotiations.
The disclosure of documents concerning the EU-US Trade and Technology Council
would undermine the protection of the public interests as regards international relations.
It is therefore prevented by the exception laid down in Article 4(1), third indent of
regulation (EC) 1049/2001.
2
Article 4(1)(a), third indent, of Regulation (EC) No 1049/2001 provides that the
'institutions shall refuse access to a document where disclosure would undermine the
protection of […] the public interest as regards […] international relations […]'.
The above mentioned documents that fall under the scope of your request discloses the
EU’s position on the Trade and Technology Council, as well as the overall strategies and
aims for the Trade and Technology Council. These documents was drafted for internal
use of the Commission.
There is a concrete risk that the public disclosure of documents on this would affect the
mutual trust between the EU and the US and thus undercut their relations. It should be
noted that the way in which the authorities of a third country perceive the decisions of the
European Union is a component of the relations established with that third country. The
quality of our relations with third countries depend on that perception.
As per settled case-law, ‘disclosure by the Union, to the public, of its own negotiating
positions, when the negotiating positions of the other parties remain secret, could, in
practice, have a negative effect on the negotiating capacity of the Union1. Disclosure of
the documents could undermine the room for negotiation needed by the European Union
and its Member States to conclude those negotiations2.
Against this background, we consider that public disclosure of such documents would
negatively affect both the ability of the European Commission to establish and maintain
efficient and trust-based negotiating relations with the United States in the context of the
Trade and Technology Council and to effectively defend EU interests in the context of
the ongoing discussions within the Trade and Technology Council. We consider that risk
as reasonably foreseeable and non-hypothetical, as it would reveal the institution's
approaches and preferences, as well as political analysis, thus weakening its negotiation
position towards its United States counterparts.
We have also examined the possibility of granting partial access in accordance with
Article 4(6) of Regulation (EC) No 1049/2001. However, no meaningful partial access is
possible once all parts of the document protected by Article 4(1)(a), third indent
(protection of international relations) are redacted. Document 10 also contains
information about discussions in the Trade and technology Council that are covered by
this exception. However, partial access to this document is granted.
Please note that this list also includes documents that were drawn up for internal use
under the responsibility of the relevant services of the European Commission. They
reflect solely the author's interpretation of the interventions made and do not set out any
official position of the third parties to which the document refers, which was not
consulted on its content. It does not reflect the position of the Commission and cannot be
quoted as such.
In case you would disagree with this position, you are entitled, in accordance with Article
7(2) of Regulation (EC) No 1049/2001, to submit a confirmatory application requesting
the Commission to review this position.
1 Judgment of 19 March 2013 in Case T-301/10, In 't Veld v Commission, EU:T:2013:135, paragraph 125.
2 See also Judgment of 25 April 2007, WWF European Policy Programme v Council of the European
Union, T-264/04, EU:T:2007:114, paragraph 41.
3
Such a confirmatory application should be addressed within 15 working days upon
receipt of this letter to the Secretariat-General of the Commission at the following
address:
European Commission
Secretariat-General
Unit C.1. ‘Transparency, Document Management and Access to Documents’
BERL 7/076
B-1049 Brussels, or by email t
o: xxxxxxxxxx@xx.xxxxxx.xx
Yours faithfully,
Elisa Roller
Director
Enclosure:
disclosed documents
4
Electronically signed on 08/07/2022 18:49 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121