Ref. Ares(2017)3665888 - 20/07/2017
EUROPEAN COMMISSION
Directorate-General for Trade
The Director General
Brussels,
trade.dga2.e.1(2017)2070814
By registered letter with acknowledgment
of receipt
Mr Stefan Knoll
Greenpeace CEE
Fernkorngasse 10
1110 Vienna
Austria
By email: ask+request-2308-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – Ref. GestDem N° 2015/5124
Dear Mr Knoll,
I refer to your request for access to documents dated 29 September 2015, under Regulation
(EC) No 1049/2001 ("Regulation 1049/2001"),1 registered under the above mentioned
reference number.
We have already sent you the list of meetings and six batches of documents. This reply
concerns the last batch of documents under your request 2015/5878, listing 74 meetings for
which we are able to provide you with 66 documents. You will find a list of these documents
in Annex I. The released documents are enclosed.
1.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
In accordance with settled case law2, when an institution is asked to disclose a document, it must
assess, in each individual case, whether that document falls within the exceptions to the right of
public access to documents set out in article 4 of Regulation 1049/2001. Such assessment is
1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 20 May 2001 regarding
public access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p. 43.
2 Judgment in
Sweden and Maurizio Turco v Council, Joined cases C-39/05 P and C-52/05 P,
EU:C:2008:374, paragraph 35.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
carried out in a multi-step approach: first, the institution must satisfy itself that the document
relates to one of the exceptions, and if so, decide which parts of it are covered by that exception;
second, it must examine whether disclosure of the parts of the document in question pose a
“
reasonably foreseeable and not purely hypothetical” risk of undermining the protection of the
interest covered by the exception; third, if it takes the view that disclosure would undermine the
protection of any of the interests defined under articles 4(2) and 4(3) of Regulation 1049/2001,
the institution is required
"to ascertain whether there is any overriding public interest justifying
disclosure"3.
In view of the objectives pursued by Regulation 1049/2001, notably to give the public the widest
possible right of access to documents4,
"the exceptions to that right […] must be interpreted and
applied strictly"5.
Out of the 66 documents, we are pleased to grant you full access to 7 documents and partial
access to 59 documents. Please note that some parts of some reports have been removed as they
fall out of the scope of your request.
In all 59 documents the names of the participants to the meetings and correspondence, as well as
other personal identifiers (
e.g. e-mail addresses, telephone numbers, office numbers) have been
redacted, pursuant to article 4(1)(b) of Regulation 1049/2001 and in accordance with Regulation
(EC) No 45/2001 ("Regulation 45/2001")6. Hence, the main content of these documents is
accessible. Moreover, the names of members of Cabinet, senior management of the Commission
starting from the Director level, and senior representatives of external stakeholder (
e.g. CEO,
Director) have all been disclosed.
As regards documents 3, 14, 15, 16, 21, 31, 47, 49, 51, 59, 65, 67, 72, 73 and 74, in addition to
personal data covered by the exception of article 4(1)(b) of Regulation 1049/2001, other
information has been redacted as it is covered either by the exception set out in Article 4(1)(a)
third indent of Regulation 1049/2001 (protection of the public interest as regards international
relations) or by the exception set out in Article 4(2) of Regulation 1049/2001 (protection of
commercial interests) or by Article 4(3) of Regulation 1049/2001 (protection of the institution's
decision-making process), or by more than one Article at the same time.
The reasons justifying the application of the abovementioned exceptions are set out below in
sections 1.1, 1.2, 1.3 and 1.4. Section 2 provides an assessment of whether there exists an
overriding public interest in the disclosure.
3
Id.,
paragraphs 37-43. See also judgment in
Council v Sophie in ’t Veld, C-350/12 P, EU:C:2014:2039,
paragraphs 52 and 64.
4 See Regulation (EC) No 1049/2001, recital (4).
5 Judgment in
Sweden v Commission, C-64/05 P, EU:C:2007:802, paragraph 66.
6 Regulation (EC) No 45/2001 of the European Parliament and the 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, OJ L 8, 12.1.2001, p. 1.
2
1.1.
Protection of international relations (documents 3, 14, 15, 16, 21, 31, 51, 65, 67,
72 and 74)
Article 4.1(a) third indent, of Regulation 1049/2001 provides that
“[t]he institutions shall refuse
access to a document where disclosure would undermine the protection of: the public interest as
regards: […] international relations.”
According to settled case-law,
"the particularly sensitive and essential nature of the interests
protected by Article 4(1)(a) of Regulation No 1049/2001, combined with the fact that access
must be refused by the institution, under that provision, if disclosure of a document to the
public would undermine those interests, confers on the decision which must thus be adopted
by the institution a complex and delicate nature which calls for the exercise of particular
care. Such a decision therefore requires a margin of appreciation".7 In this context, the Court
of Justice has acknowledged that the institutions enjoy
"a wide discretion for the purpose of
determining whether the disclosure of documents relating to the fields covered by [the]
exceptions [under Article 4.1(a)] could undermine the public interest".8
The General Court found that
"it is possible that the disclosure of European Union positions
in international negotiations could damage the protection of the public interest as regards
international relations" and
"have a negative effect on the negotiating position of the
European Union" as well as
"reveal, indirectly, those of other parties to the negotiations".9
Moreover, the
"the positions taken by the Union are, by definition, subject to change
depending on the course of those negotiations and on concessions and compromises made in
that context by the various stakeholders. The formulation of negotiating positions may involve
a number of tactical considerations on the part of the negotiators, including the Union itself.
In that context, it cannot be precluded that 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 Union".10
Documents 3, 14, 15, 16, 21, 31, 51, 65, 67, 72 and 74, are all reports of meetings between DG
Trade representatives – in a few cases including also members of the Cabinet of Commissioner
Malmström – with representatives of external stakeholders, such as the IP Europe (document 14),
European Generic Medicines Association (EGA) (document 15), UK representative (document
16), Federation of the European Sporting Goods Industry (FESI) (document 21), European
Environmental Bureau and European Federation for Transport and Environment (document 31),
European SMEs representatives (document 51), Eurofer (document 65), Cercle de l'industrie
(document 67), European Federation of Pharmaceutical Industries and Associations (document
72), or European Association of Pharmaceutical Full-line Wholesalers (document 74). Document
3 is the report of an event called " Promotion and Protection of Foreign Direct Investments:
7
Judgment in
Sison v
Council, C-266/05 P, EU:C:2007:75, paragraph 36
8
Judgment in
Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039, paragraph 63.
9
Judgment in
Sophie in’t Veld v Commission, T-301/10, EU:T:2013:135, paragraphs 123-125.
10
Id., paragraph 125.
3
Which global framework is needed?" which was organised by the German association of
industry (BDI) and the International Chamber of Commerce Germany (DIHK).
The selected passages in
documents 3, 14, 15, 16, 21, 31, 51, 65, 67, 72 and 74, were withheld as
they reveal the external stakeholders’ main business concerns, strategic interests, priorities and
their internal assessment and input for the negotiations. As such, this information indirectly
reveals negotiating priorities, strategic objectives and tactics which the EU could consider
pursuing in its trade negotiations. In addition, certain passages contain preliminary assessments,
internal commentaries, opinions and views of individual staff members in relation to certain
sensitive matters or positions that emerged during the negotiations with the US, as well as
internal reflections regarding possible strategies and tactics to be pursued in the discussions.
The information contained in these documents was in general meant for internal use as a basis to
establish EU positions, strategies, objectives and way forward on specific aspects of the
negotiations. Even if the information contained in these documents was related to the TTIP
negotiations, there is a reasonably foreseeable risk that its public disclosure would undermine
and weaken the position of the EU in its ongoing trade negotiations with other third countries
in which similar topics are being discussed. Indeed, the information that the EU’s trading
partners may collect on the basis of the public disclosure of certain detailed positions,
concerns, views and strategies of the Commission and of individual stakeholders may allow
them to extract specific concessions from the EU in the context of the ongoing negotiations,
thus to the disadvantage of the EU’s public interests. Third countries may also anticipate or
deduce certain negotiating positions of the EU ahead of the trade talks on the basis of the
information contained in the withheld passages.
Indeed, the success of trade negotiations depends to a large extent on the protection of
objectives, tactics and fall-back positions of the parties involved. In order to ensure the best
possible outcome in the public interest, the EU needs to retain a certain margin of manoeuvre
to shape and adjust its tactics, options and positions in function of how the discussions evolve
in its trade negotiations. Exposing internal views and considerations would weaken the
negotiating capacity of the EU, reduce its margin of manoeuvre and be exploited by our
trading partners to obtain specific results, thereby undermining the strategic interests of the
EU and consequently, the protection of the public interest as regards international relations.
Moreover, the disclosure of internal views, comments and positions of individual staff
members on issues on which an official position has not been adopted would weaken the
credibility of the Commission in the ongoing negotiations as well as lead the EU's negotiating
partners to potential misleading conclusions, thus jeopardising the public interest as regards
the EU’s international relations.
Although the TTIP negotiations have now come to a pause while the Commission awaits
clarity on the priorities of the new US administration as regards a trade agreement between
the EU and the US,11 preserving the negotiating position of the EU, its margin of manoeuvre
11
See Commissioner Malmström’s blog post at https://ec.europa.eu/commission/2014-
2019/malmstrom/blog/ttip-assessment-and-pause_en.
4
and tactical approaches is also important in order not to jeopardise the results achieved so far
in the TTIP negotiations, nor any further discussions which may take place in the future
between the EU and the US on commercial issues.
Finally, it should be noted that some of the withheld passages reveal, although indirectly, the
position of the US. Such disclosure is likely to upset the mutual trust between the EU and the
US and thus undermine their relations. It would also jeopardise the mutual trust between the
EU and other trading partners as they may fear that in the future their positions would also be
exposed and they may as a result refrain from engaging with the EU. Negotiating partners
need to be able to confide in each other's discretion and to trust that they can engage in open
and frank exchanges of views without having to fear that that these views and positions may
in the future be publicly revealed. As the Court recognised in Case T-301/10
in’t Veld v
Commission,
“[…] establishing and protecting a sphere of mutual trust in the context of
international relations is a very delicate exercise"12.
1.2.
Protection of privacy and integrity of the individual (documents 1, 2, 3, 7, 8, 9,
10, 11, 12, 13, 14, 15, 16, 20, 21, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 38, 41,
42, 43, 44, 45, 46, 47, 48, 49, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65,
66, 67, 68, 71, 72, 73 and 74)
Article 4(1) (b) of Regulation 1049/2001 provides that
“[t]he institutions shall refuse access
to a document where disclosure would undermine the protection of: […] privacy and the
integrity of the individual, in particular in accordance with Community legislation regarding
the protection of personal data".
The Court of Justice has ruled that
"where an application based on Regulation 1049/2001 seeks
to obtain access to documents containing personal data" "the provisions of Regulation 45/2001,
of which Articles 8(b) and 18 constitute essential provisions, become applicable in their
entirety"13
.
Article 2(a) of Regulation 45/2001 provides that
"'personal data' shall mean any information
relating to an identified or identifiable natural person […]". The Court of Justice has confirmed
that
"there is no reason of principle to justify excluding activities of a professional […] nature
from the notion of 'private life"14 and that
"surnames and forenames may be regarded as personal
data"15, including names of the staff of the institutions16.
12 Judgment in
Sophie in’t Veld v European Commission, T-301/10, EU:T:2013:135, paragraph 126.
13 Judgment in
Guido Strack v Commission, C-127/13 P,
EU:C:2014:2250, paragraph 101; see also judgment
in
Commission v Bavarian Lager, C-28/08 P, EU:C:2010:378, paragraphs 63 and 64.
14 Judgment in
Rechnungshof v Rundfunk and Others, Joined cases C-465/00, C-138/01 and C-139/01,
EU:C:2003:294, paragraph 73.
15 Judgment in
Commission v Bavarian Lager, C-28/08 P, EU:C:2010:378, paragraph 68.
16 Judgment in
Guido Strack v Commission, C-127/13 P,
EU:C:2014:2250, paragraph 111.
5
According to Article 8(b) of this Regulation, personal data shall only be transferred to recipients
if they establish
"the necessity of having the data transferred" and additionally
"if there is no
reason to assume that the legitimate interests of the data subjects might be prejudiced". The
Court of Justice has clarified that
"it is for the person applying for access to establish the
necessity of transferring that data"17
.
Documents 1, 2, 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 20, 21, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33,
34, 35, 38, 41, 42, 43, 44, 45, 46, 47, 48, 49, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64,
65, 66, 67, 68, 71, 72, 73 and 74 all contain names and other personal information that allows the
identification of natural persons.
I note that that you have not established the necessity of having these personal data transferred to
you. Moreover, it cannot be assumed, on the basis of the information available, that disclosure of
such personal data would not prejudice the legitimate interests of the persons concerned.
Therefore, these personal data shall remain undisclosed in order to ensure the protection of the
privacy and integrity of the individuals concerned.
1.3.
Protection of commercial interests (documents 14, 59 and 73)
Article 4(2) first indent, of Regulation 1049/2001 provides that
“[t]he institutions shall refuse
access to a document where disclosure would undermine the protection of: […] commercial
interests of a natural or legal person […] unless there is an overriding public interest in
disclosure".
While not all information concerning a company and its business relations can be regarded
as
falling under the exception of Article 4(2) first indent18, it appears that the type of information
covered by the notion of commercial interests would generally be of the kind protected under the
obligation of professional secrecy19. Accordingly, it must be information that is
"known only to a
limited number of persons",
"whose disclosure is liable to cause serious harm to the person who
has provided it or to third parties" and for which
"the interests liable to be harmed by disclosure
must, objectively, be worthy of protection "20.
Document 14 is a report of a meeting between DG Trade representatives and IP Europe
representatives to discuss the recent IP policy related to TTIP.
Document 59 is a report of a meeting between DG Trade representatives and EUnited to present
the engineering industry's views on trade.
17
Id, paragraph 107; see also judgment in
Commission v Bavarian Lager, C-28/08 P, EU:C:2010:378,
paragraph 77.
18 Judgment in
Terezakis v Commission, T-380/04, EU:T:2008:19, paragraph 93.
19 See Article 339 of the Treaty on the Functioning of the European Union.
20 Judgment in
Bank Austria v Commission, T-198/03, EU:T:2006:136, paragraph 29.
6
Documents 73 is a report covering a conference organised by the polish Ministry of Economy on
medicinal products and cosmetics where a DG TRADE representative participated as speaker, a
visit to two Polish cosmetics manufacturing sites and a brainstorming session with cosmetics
industry manufactures.
Some passages in these documents have been withheld because they contain business sensitive
information pertaining to a company or group of companies, including details about commercial
priorities, objectives, strategies and interests which they pursue in domestic and foreign markets
(documents 14, 59 and 73). There is a reasonably foreseeable risk that the public disclosure of
this information would harm the commercial interests of the entities and companies
concerned, as it could be exploited by competitors to undermine their competitive positions in
third countries and their relationship with the other economic operators in such markets.
A few passages also reveal the stakeholders’ assessments and comments regarding the economic
and political situation in certain countries, which if publicly disclosed would harm the relations
that these organisations have with the governments and regulators in third countries
(document 73).
All this information was shared with the Commission in order to provide useful input and
support for the EU’s objectives in its trade negotiations. Economic operators typically share
information with the Commission so that the latter can determine how to best position itself in
the negotiations in order to protect its strategic interests and those of its industry, workers and
citizens. Ensuring that the Commission continues to receive access to this information and
that the industry engages in open and frank discussions with the Commission, are key
elements for the success of the internal and external policies of the EU and its international
negotiations. Bringing in the public domain specific business related information that
companies share with the Commission may prevent the Commission from receiving access to
such information in the future.
1.4.
Protection of the decision-making process (documents 31, 47, 49, 65, 67 and 72)
Article 4(3) of Regulation 1049/2001 provides that "[a]ccess to a document drawn up by an institution
for internal use or received by an institution, which relates to a matter where the decision has not
been taken by the institution, shall be refused if disclosure of the document would seriously undermine
the institution’s decision-making process, unless there is an overriding public interest in disclosure”.
The jurisprudence of the EU Courts has also recognized that
"the protection of the decision making
process from targeted external pressure may constitute a legitimate ground for restricting access to
documents relating to the decision-making process"21
and that the capacity of its staff to express their
opinions freely must be preserved22 so as to avoid the risk that the disclosure would lead to future
self-
21 Judgment
in
MasterCard and Others v
Commission, T-516/11, EU:T:2014:759, paragraph 71
22 Judgment
in
Muñiz v
Commission, T-144/05, EU:T:2008:596, paragraph 89.
7
censorship. As the General Court put it, the result of such self-censorship
"would be that the
Commission could no longer benefit from the frankly- expressed and complete views required of its
agents and officials and would be deprived of a constructive form of internal criticism, given free of
all external constraints and pressures and designed to facilitate the taking of decisions [...].” 23
The redacted passage in documents 31, 47, 49, 65, 67 and 72 contains the personal views and
impressions of a Commission official regarding the political situation in one Member States in
connection with a matter, the TTIP negotiations, where a decision has not yet been taken. Exposing
internal views and considerations expressed in this context would subject the Commission and the
Member States to external pressure, potential manipulation and unfounded conclusions both from
external stakeholders and from our negotiating partners. It would also restrict the free exchange of
views within the Commission staff and between the Commission and other relevant actors. Finally, it
would have a negative impact on decisions still to be taken by the EU by giving out elements of the
Commission's assessment and its possible future approaches. Protecting the confidentiality of internal
views and opinions allows for the parties involved to speak freely and frankly. Reducing this degree of
confidentiality would lessen the trust of the parties involved and give rise to a risk of self-censorship,
which would in turn undermine the quality of the internal consultation and decision making process.
2.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4.2 and in Article 4.3 of Regulation 1049/2001 applies unless
there is an overriding public interest in disclosure of the documents. Such an interest must, first,
be public and, secondly, outweigh the harm caused by disclosure. Accordingly, we have also
considered whether the risks attached to the release of the withheld parts of documents 14, 31, 47,
49, 59, 65, 67, 72 and 73 are outweighed by the public interest in accessing the requested
documents. We have not been able to identify any such public interest capable of overriding the
commercial interests of the companies concerned. The public interest in this specific case rather
lies on the protection of the legitimate confidentiality interests of the stakeholders concerned
to ensure that the Commission continues to receive useful contributions for its ongoing
negotiations with third countries without undermining the commercial position of the entities
involved.
***
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a confirmatory
application requesting the Commission to review this position.
Such a confirmatory application should be addressed within 15 working days upon receipt of
this letter to the Secretary-General of the Commission at the following address:
23 Judgment
in
MyTravel v Commission, T-403/05, EU:T:2008:316, paragraph 52.
8
European Commission
Secretary-General
Transparency unit SG-B-4
BERL 5/282
B-1049 Brussels
Or by em
ail to: xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
Jean-Luc DEMARTY
Annex I – List of documents disclosed, including justification under Regulation 1049/2001;
Annex II – Documents disclosed
Electronically signed on 19/07/2017 21:01 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563
9
Document Outline