Ref. Ares(2017)3194500 - 26/06/2017
EUROPEAN COMMISSION
Directorate-General for Communications Networks, Content and Technology
Director-General
Brussels,
CONNECT/I2/VD/hz (2017) 3495620
Ms Kirsten FIEDLER
Managing Director
European Digital Right
Rue Belliard, 20
1040 Brussels
Email:ask+request-4175-
xxxxxxxx@xxxxxxxx.xxx
REGISTERED LETTER WITH ACKNOWLEDGEMENT OF RECEIPT
Subject:
Your application for access to documents – Ref GestDem No 2017/2215
Dear Ms Fiedler,
We refer to your email dated 10/04/2017 in which you make a request for access to
documents, registered on 10/04/2017 under the above mentioned reference number.
1.
SCOPE OF THE REQUEST
You request access to "
documents which contain the following information for the period
of 14 July until the publication of the draft Copyright Directive on 14 September 2016:-
all correspondence (including emails) to officials in DG CNECT from the International
Federation of the Phonographic Industry (IFPI) and the European Grouping of Societies
of Authors and Composers (GESAC)." You further mentioned that you were only
requesting "
access to the contents of the communications and that personally identifiable
information (such as email headers) can therefore be sent with redactions".
Since the description given in your application did not enable us to clearly identify the
concrete documents which would correspond to your request, we sent you a request of
clarification on 02/05/2017 (Ref. Ares (2017)2251266). On 08/05/2017, you informed us
that your request "
covers all correspondence (including emails) from the International
Federation of the Phonographic Industry (IFPI) and the European Grouping
of Societies of Authors and Composers (GESAC) sent to officials in DG CNECT
regarding the proposal for a directive on copyright in the Digital Single Market, for the
period running from 14 July 2016 until 14 September 2016 (adoption of the proposal)"
(Ref. Ares (2017) 3094896). On 01/06/2017, we sent you a holding reply concerning the
extension of the deadline. (Ref. Ares (2017)2762934).
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
2.
DOCUMENTS COVERED BY REGULATION 1049/2001
Your application concerns the following documents:
(1)
Email from IFPI with legal note, 15/07/2016, (Ref. Ares(2017)2268842)
(2)
Email from IFPI with legal note, 19/07/2016, (Ref. Ares(2017)2268925)
(3)
Email from IFPI, 29/07/2016, (Ref. Ares(2017)2268979)
(4)
Email from IFPI, with legal note, 02/08/2016, (Ref. Ares(2017)2269094)
(5)
Email from IFPI with legal note,05/08/2016, (Ref. Ares(2017)2269139)
(6)
Email from IFPI with legal note, 11/08/2016, (Ref. Ares Ares(2017)2269213)
(7)
Email from IFPI, 30/08/2016, (Ref. Ares(2017)2269439)
(8)
Email from GESAC, 05/09/2016, (Ref. Ares(2017)2269315)
(9)
Email from IFPI, 07/09/2016, (Ref. Ares(2017)2269382)
(10)
Email from GESAC, 14/09/2016, (Ref. Ares(2017)2269504)
3.
ASSESSMENT OF THE DOCUMENTS
The documents which you seek to obtain relate to correspondences between stakeholders
(IFPI and GESAC) and the Commission (namely officials in DG CNECT) during the period
preceding the adoption of the "Proposal for a Directive of the European Parliament and of
the Council on copyright in the Digital Single Market", COM/2016/0593 final -
2016/0280 (COD). They contain legal opinions and third parties' positions regarding
areas of law related to the Proposal.
Since the documents originate from third parties, IFPI and GESAC
, the originators of the
documents, have been consulted pursuant to article 4(4) of the Regulation (EC) No
1049/2001 (hereinafter "Regulation 1049/2001") regarding public access to documents.
IFPI has objected to full disclosure of the documents 2, 4-7 and 9 on the basis of the
exceptions provided for in Articles 4(2) second indent (protection of legal advice), 4(2) first
indent (protection of commercial interests) and 4(3) (protection of the Institution's decision
making process) of the Regulation 1049/2001. GESAC did not object to disclose their
emails (documents 8 and 10).
Following an examination of the documents requested under the provisions of this
Regulation and taking into account the consultation of the third parties, I have arrived at the
following conclusion:
a)
DOCUMENTS 3, 8 AND 10: FULL ACCESS WITH ONLY PERSONAL DATA REDACTED
Annex 1 contains the documents to which full access is granted following simple redaction
of personal data.
Pursuant to Article 4(1) (b) of Regulation 1049/2001, access to a document has to be
refused if its 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 applicable legislation in this field is Regulation (EC) No 45/2001 of
the European Parliament and of the Council of 18 December 2000 on the protection of
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individuals with regard to the processing of personal data by the Community institutions
and bodies and on the free movement of such data (hereinafter "Regulation 45/2001") .
When access is requested to documents containing personal data, Regulation 45/2001
becomes fully applicable.
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 to them and if there is
no reason to assume that the legitimate rights of the persons concerned might be prejudiced.
We consider that, with the information available, the necessity of disclosing the
aforementioned personal data to you has not been established and/or that it cannot be
assumed that such disclosure would not prejudice the legitimate rights of the persons
concerned. Moreover, in your application you mention expressly that personally identifiable
information can be redacted. Therefore, we are disclosing the documents requested
expunged from this personal data.
In case you would disagree with the assessment that the expunged data are personal data
which can only be disclosed if such disclosure is legitimate under the rules of personal data
protection, you are entitled, in accordance with Article 7(2) of Regulation 1049/2001, to
make a confirmatory application requesting the Commission to review this position
according to the procedure laid down at the point 5 of this letter.
b)
DOCUMENTS 1, 4 AND 5: PARTIAL ACCESS
Annex 2 contains the documents to which partial access is granted.
Some parts of the documents have been redacted as their disclosure is prevented by one or
more exceptions to the right of public access to documents laid down in Article 4 of
Regulation 1049/2001:
i.
Protection of privacy (Art. 4 (1) (b))
Some of the deleted parts of the documents contain personal data, in particular names of
senders, recipients and contact details, which have been redacted for the reasons indicated
under point 3a).
ii.
Protection of legal advice (Art. 4 (2) second indent) and of the commercial interest
(Art. 4(2) first indent)
Article 4(2), second indent of Regulation 1049/2001 provides that "
[t]he institutions shall
refuse access to a document where disclosure would undermine the protection of: (...) legal
advice (...) unless there is an overriding public interest in disclosure."
Article 4(2), first indent 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, including intellectual property (...) unless there is an overriding public
interest in disclosure."
Documents 1, 4 and 5 consist of an email exchange between the European Commission and
IFPI in which reference is made to legal advice (enclosed) prepared by IFPI's external
counsel or by their in-house lawyer.
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In reply to the Commission's consultation, IFPI argues that the public release of the
documents would seriously undermine the company's legal professional privilege. This
privilege is considered as the company's ability to seek legal advice and to choose and revert
to its legal advisers in all freedom and without any outside interference or risk of disclosure
of the related communications. The legal advisers/law firm concerned or other legal
advisers/law firms would become hesitant in future to provide advice to IFPI and to do so it
in a frank, objective and comprehensive manner if they would learn that their legal opinions,
which they provided specifically and in all confidentiality to IFPI, would be made public.
Release of the documents would therefore have the effect of undermining the protection of
legal advice in the sense of Article 4(2), second indent of Regulation 1049/2001.
For similar reasons (i.e. the direct, indirect revelation on the specific legal issues of interest
for IFPI and the legal strategy and approach taken by them) the release of the documents
would also harm the professional secrecy and the commercial image of both IFPI's members
and their legal advisers/law firm concerned, and in this way undermine the commercial
interests protected by Article 4(2), first indent of Regulation 1049/2001. It could notably
jeopardize IFPI's members' position with regard to future contractual negotiations or
litigations given that defendants would have prior knowledge of legal arguments.
iii.
Protection of legal advice (Art. 4(2) second indent) and of the Institution's decision
making process (art.4(3))
One redacted part of document 1 relates to a position taken by the Commission's legal
service on an issue related to the copyright reform. Disclosure of the part of this
document at this stage would have a serious impact on the Commission's interest in
receiving frank, objective and comprehensive legal advice. It would also constitute a risk
to weaken the Commission in any possible dispute.
Furthermore, based on Article 4(3) of Regulation 1049/2001, I consider that providing
access to the part of the document concerned would seriously undermine the decision
making process in the context of the ongoing legislative process and the intense
discussions and negotiations of the legislative Proposal in the European Parliament and
the Council.
c)
DOCUMENTS 2, 6, 7 AND 9: NO DISCLOSURE
Annex 3 contains the list of documents to which access is denied.
As regard documents 2, 6, 7, 9, I regret to inform you that your application cannot be
granted, as disclosure is prevented by the exceptions to the right of access laid down in
Article 4(2) first and second indent of the Regulation 1049/2001.
These documents contain non-public positions of IFPI on specific issues arising in the
context of the copyright reform, the disclosure of which at this stage could seriously
undermine the negotiating position of IFPI's members in the course of their business
activity. They constitute commercially sensitive business information, representing
commercial interests, which are protected against disclosure under the first indent of
Article 4(2) of Regulation 1049/2001.
They also contain legal advice from IFPI's external and in-house lawyers on specific legal
issues pertaining to copyright. For the same reasons as the ones here-above mentioned by
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IFPI, access to these documents must be denied as they are covered by the exception laid
down in the second indent of article 4(2) of Regulation 1049/2001.
I have considered whether partial access could be granted to the documents without
undermining the interests described above. Yet I have arrived at the conclusion that this was
not possible, since the invoked above exceptions of Article 4(2) cover the documents in
their entirety.
4.
OVERRIDING PUBLIC INTEREST
The exceptions called upon in point 3b)ii and 3b)iii and laid down in Article 4(2) and 4(3)
of Regulation 1049/2001 apply, unless there is an overriding public interest in disclosure of
the documents. While recognising the importance of transparency in enabling citizens to
participate in the democratic process, in this case, I take the view that the public interest in
making the content of these documents public does not outweigh the harm that their
disclosure would cause to the interests protected by the invoked exceptions.
5.
CONFIRMATORY APPLICATION
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting the Commission to review its 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:
European Commission
Secretary-General
Transparency unit SG-B-4
BERL 5/327
B-1049 Brussels
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours faithfully,
Roberto Viola
Enclosure:
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5
Electronically signed on 26/06/2017 16:37 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563
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