Ref. Ares(2017)3662357 - 20/07/2017
EUROPEAN COMMISSION
Directorate-General for Trade
The Director General
Brussels,
Trade/G3/FPC/NL/lnb
By registered letter with acknowledgment of
receipt
Ms Anna Maskell
Corporate Europe Observatory
Rue d'Edimbourg 26
1050 Brussels
Advance copy by email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – Ref. GestDem No 2017/2738
Dear Ms Maskell,
I refer to your application of 8 May 2017 in which you made a request for access to
documents in accordance with Regulation (EC) No 1049/20011, registered on the same
date under the abovementioned reference number.
You would like to receive access to:
"
all communication, including emails, and documents (agenda, minutes, list of
participants, etc.) related to the meeting listed in the news from the Energy Charter
Treaty (http://www.energycharter.org/media/news/article/secretary-general-rusnak-
meets-with-the-european-commissioner-for-trade-mr-karel-de-gucht/) between former
Commissioner Karel de Gucht and Secretary General of the Energy Charter, Mr. Urban
Rusnák, on the 22nd of April 2014"
.
We have identified two documents falling under the scope of your request:
A request for meeting with Commissioner De Gucht by the Energy Charter
Secretariat made on 7 March 2014 (Ares(2014)621458) ("
document 1");
A summary report of the meeting between Commissioner De Gucht and
Secretary-General Urban Rusnák, which includes a document in attachment
(Ares(2017)3062081) ("
document 2").
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.
Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11.
2.
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 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.
Having examined the requested documents under the applicable legal framework,
partial
access is granted to documents 1 and 2. In particular, as regards document 1, only
personal data 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.
As regards document 2, in addition to personal data, additional information was redacted
in accordance with articles 4(1)(a) third indent (protection of the public interest as regards
international relations) and 4(3) first subparagraph (protection of the institution's decision-
making process) of Regulation 1049/2001.
The reasons justifying the application of the exceptions are set out below in Sections 2.1,
2.2 and 2.3. Section 3 contains an assessment of whether there exists an overriding public
interest in the disclosure.
2.1
Protection of the public interest as regards international relations
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”.
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.
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 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
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 Energy Charter is an international organization, which aims to find balanced solutions
to key energy challenges among a diverse range of member countries across Europe and
Asia, including producers, consumers and transit states, participating in the Charter on an
equal basis. Fifty-two European and Asian countries have signed or acceded to the Energy
Charter Treaty. All EU Member States are individual signatories, but the Treaty has also
been signed collectively by the European Community and Euratom so the total number of
parties to the Treaty is fifty-four.
Document 2 is a meeting report of the meeting between Commissioner Karel De Gucht and
Urban Rusnák, Secretary-General of the Energy Charter, on 22 April 2014. Parts of this
document have been redacted as they reflect views and concerns expressed for internal
use, regarding negotiations with third countries or concerning the political or economic
situation in third countries. Annex to document 2 has been withheld as it reveals the
position of the EU as regards the Energy Charter proposal on the revision of the rules on
investment. Public release of those comments would seriously undermine the EU's
objectives in the area of trade and energy policy, and ultimately would undermine the
protection of the international relations of the EU.
More specifically, some of the redacted passages in document 2 are related to the TITP
negotiations with the US. Although the TTIP negotiations have now come to a pause,
exposing internal views and considerations would weaken the negotiating capacity of the
EU more generally, reduce its margin of manoeuvre and be exploited by our trading
partners to obtain specific results. With respect to TTIP in particular, preserving the
negotiating position of the EU and tactical approaches is important in order not to
jeopardise the results achieved so far in these negotiations. It should be noted that some
of the withheld passages also 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 the relations of the EU with this partner.
Similarly, the attachment to document 2 represents a comparative table of the position of
the EU and the position of the Energy Charter as regards the reform of the investment
rules under the Energy Charter Treaty. Revealing the position of the EU and preliminary
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.
3
proposal of the Energy Charter on the reform of the Energy Charter Treaty would break
the climate of confidence and trust between the two institutions, therefore undermining
the protection of the international relations of the EU.
Even if the information contained in some of the redacted passages of document 2 or in
the attachment to document 2 was related specifically to the TTIP negotiations or to the
Energy Charter Treaty reform, 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.
Furthermore, some of the redacted passages in document 2 describe in a very detailed
way the open discussion between Commissioner De Gucht and Secretary-General
Rusnák on different issues and concerns vis-á-vis the Energy Charter and its individual
members. The disclosure of the EU position on these issues would undermine in a
reasonably foreseeable manner the climate of confidence and trust between the EU and
its partners. Preserving a certain level of discretion and special care in handling
documents that reflect the positions of our partners and internal views, impressions and
characterisations of these positions is essential in order not to jeopardise the international
relations of the EU. International partners need to be able to rely on each other's
discretion and to trust that they can engage in open and frank exchanges of views without
having to fear that these views and positions may in the future be exposed. 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"9
.
2.2
Protection of privacy and integrity of the individual
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 applicable legislation in this field is Regulation 45/2001. In this respect, the Court of
Justice has ruled that
"the provisions of Regulation 45/2001, of which Articles 8(b) and 18
constitute essential provisions, become applicable in their entirety where an application
based on Regulation 1049/2001 seeks to obtain access to documents containing personal
data"10
.
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'"11 and that
"surnames and
9 Judgment in
Sophie in’t Veld v European Commission, T-301/10, EU:T:2013:135, paragraph 126.
10 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.
11 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.
4
forenames may be regarded as personal data"12, including names of the staff of the
institutions13.
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"14
.
Documents 1 and 2 contain personal information, such as names, email addresses or
telephone numbers that allow the identification of natural persons. The name of
Commissioner De Gucht and of the Secretary-General of the Energy Charter are
disclosed.
I note 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.
2.3
Protection of the institution's decision-making process
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"15 and that the
capacity of its staff to express their opinions freely must be preserved16 so as to avoid the
risk that the disclosure would lead to future self-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 […]"17.
12 Judgment in
Commission v Bavarian Lager, C-28/08 P, EU:C:2010:378, paragraph 68.
13 Judgment in
Guido Strack v Commission, C-127/13 P,
EU:C:2014:2250, paragraph 111.
14
Id., paragraph 107; see also judgment in
Commission v Bavarian Lager, C-28/08 P, EU:C:2010:378,
paragraph 77.
15 Judgment in
MasterCard and Others v Commission, T-516/11, EU:T:2014:759, paragraph 71
16 Judgment in
Muñiz v Commission, T-144/05, EU:T:2008:596, paragraph 89.
17 Judgment in
MyTravel v Commission, T-403/05, EU:T:2008:316, paragraph 52.
5
Annex to document 2 includes a comparative table of the position of the EU and the
position of the Energy Charter as regards this topic that was drafted for internal purposes
of the discussions at the moment of the meeting between Commissioner De Gucht and
Secretary-General Rusnák. The discussions on the reform of the ISDS rules are still
ongoing and the positions of the EU and of the Energy Charter may have evolved in the
process of the negotiations and may not reflect the position of both institutions at this
moment.
Disclosing the withheld attachment would seriously undermine the decision-making process
of the institution in this specific case, as it would reduce the free exchange of views between
the Commission staff by exposing views and considerations to undue pressure and
unfounded conclusions both from external stakeholders and from our negotiating partners. It
would also 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 risk of self-censorship, which would in turn undermine the quality of the
discussions and the decision-making process.
3.
OVERRIDING PUBLIC INTEREST
The exception laid down in article 4(3) first subparagraph of Regulation 1049/2001
applies unless there is an overriding public interest in the disclosure of the documents.
Such an interest must, first, be public and, secondly, outweigh the harm caused by
disclosure. The Court of Justice has acknowledged that it is for the institution concerned
by the request for access to balance the particular interest to be protected by non-
disclosure of the document against the public interest. In this respect, the public interest
is of particular relevance where the institution
"is acting in its legislative capacity"18 as
transparency and openness of the legislative process strengthen the democratic right of
European citizens to scrutinize the information which has formed the basis of a
legislative act19.
The documents withheld under article 4(3) all pertain to the domain of the executive
functions of the EU as they concern trade negotiations. In this context, the Court has
acknowledged that
“public participation in the procedure relating to the negotiation and
the conclusion of an international agreement is necessarily restricted, in view of the
legitimate interest in not revealing strategic elements of the negotiations"20.
After careful assessment, we have concluded that on balance, preserving the
Commission's decision-making prevails over transparency in this specific case. In
particular, disclosure at this stage of documents withheld under article 4(3) of Regulation
18 Judgment in
Sweden and Maurizio Turco v Council, Joined cases C-39/05 P and C-52/05 P,
EU:C:2008:374, paragraph 46.
19
Id., paragraph 67.
20 Judgment in
Sophie in ’t Veld v European Commission, T-301/10, EU:T:2013:135, paragraphs 120 and
181; see also Judgment in
Sophie in ’t Veld v Council, T-529/09, EU:T:2012:215, paragraph 88.
6
1049/2001 would undermine the possibility of achieving the best possible outcome in the
public interest. Disclosing the withheld attachment would expose the EU to have to
justify preliminary positions which eventually evolved in the decision-making process
and which may endanger the relationship with an important institutional partner.
Therefore, on the basis of the considerations made above, we have not been able to
identify a public interest capable of overriding the Commission’s decision making
process.
4.
PARTIAL ACCESS
Pursuant to Article 4(6) of Regulation 1049/2001
"[i]f only parts of the requested
document are covered by any of the exceptions, the remaining parts of the document
shall be released". Accordingly, we have also considered whether partial access can be
granted to the annex to document 2.
After a careful review, we have concluded that this attachment is entirely covered by the
exceptions described above as it is impossible to disclose any parts of these documents
without undermining the protection of the interests identified in this reply.
***
In case you would disagree with the assessment provided in this reply, 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.
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 5/282
1049 Bruxelles
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
Jean-Luc DEMARTY
Encl.: released documents
7
Electronically signed on 19/07/2017 20:57 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563