Ref. Ares(2018)6630700 - 21/12/2018
Directorate-General for Trade
The Director General
By registered letter with
acknowledgment of receipt
Mr Bart-Jaap Verbeek
Centre for Research on Multinational
018 GL Amsterdam
The Netherlands Advance copy by email:
Your application for access to documents – Ref GestDem No 2018/4306
Dear Mr Verbeek,
I refer to your request of 6 August 2018 for access to documents under Regulation (EC) No
1049/20011 ("Regulation 1049/2001"), registered under the above mentioned reference
Please accept our apologies for the delay in answering your request, which is mainly due to
the high number of requests for access to documents being processed at the same time by the
Directorate-General for Trade (hereinafter ‘DG TRADE’).
SCOPE OF YOUR REQUEST
You requested access to:
1) a list of meetings between DG Trade officials and/or representatives (including the
Commissioner and the Cabinet) and stakeholders, including trade unions, civil society
groups, as well as representatives of individual companies, industry associations, law firms,
academics, public consultancies and think tanks in which the EU-Indonesia Free Trade
Agreement was discussed (between January 2016 and today);
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/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 229 91111
2) minutes and other reports of these meetings;
3) all correspondence (including emails, letters, faxes) between DG Trade officials and/or
representatives (including the Commissioner and the Cabinet) and stakeholders, including
trade unions, civil society groups, as well as representatives of individual companies,
industry associations, law firms, academics, public consultancies as well as think tanks
regarding the EU-Indonesia Free Trade Agreement (between January 2016 and today);
4) all correspondence (including emails, letters, faxes) and documents (including briefings,
memo's, non-papers) shared between DG Trade officials and/or the Commissioner and the
Cabinet in which the EU-Indonesia Free Trade Agreement was discussed (between January
2016 and today).
On 13 September 2018 we informed you that we had identified a very large number of
documents falling under the scope of your request and that we could only deal with a
maximum of 25 documents in your request. Hence, we asked you to narrow down the scope
of your request, in accordance with Article 6(3) of Regulation 1049/2001. This article
provides that in the event of an application relating to a very long document or to a very
large number of documents, the institution concerned may confer with the applicant
informally, with a view to finding a fair solution.
In order to help you taking an informed decision to narrow down the scope of your request,
we sent you, on 21 September 2018, a list of the 223 documents identified, including a title,
the type of document and its date.
You replied on 24 September by expressing your priority interest in obtaining access to the
reports of meetings, i.e. documents 85 to 110. Please note that after closer reading, we have
realised that some of the documents were erroneously identified and they do not fall within
the scope of your request (as they actually do not relate to Indonesia) or they are duplicated.
We have therefore replaced them by documents 111 to 114 of the list sent to you on 21
September. The current batch of documents still includes, however, five reports of meetings
that were not held with stakeholders as indicated in your original request, but with Indonesia
(documents 85, 88, 95, 96 and 105). Given though that this was clearly indicated in the list
we shared with you, that they do cover the subject matter of interest to you and you chose
them from the list, we decided to include those documents in this reply rather than seeking
to replace them.
A list of the documents covered in this reply is accordingly enclosed in Annex 1. For each of
the documents the list provides a description and indicates whether parts are withheld and if
so, under which ground pursuant to Regulation 1049/2001. Copies of the accessible
documents are enclosed.
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 poses a “reasonably foreseeable and not purely hypothetical
” risk of undermining the
protection of the interest covered by the exception. Third, if the institution 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
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"
Having examined the requested documents under the applicable legal framework, I am
pleased to grant you full access
to annex 2 of document 97 and to the annex of document
111 and partial access to the remaining documents except to annex 3 of document 97.
In documents 85, 86, 89, 92-97, annex 1 to document 97, 102-105, 107, 111, 112 and 114
and its annexes, only names and other personal data have been redacted pursuant to article
4(1)(b) of Regulation 1049/2001 and in accordance with Regulation (EC) No 2018/1725.
Hence, the main content of these documents is accessible.
In documents 88, 90, 91, 98, 100, 106, and 110 in addition to personal data, additional
information was 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) first indent of Regulation 1049/2001
(protection of the commercial interest of a natural or legal person).
Please note that parts of documents that do not relate to your request have been redacted as
falling out of scope.
Access is not granted
to the annex 3 to document 97, as its disclosure is prevented by the
exception set out in Article 4(2) first indent of Regulation 1049/2001 (protection of the
commercial interest of a natural or legal person). Some information is also protected pursuant
to article 4(1)(b) of Regulation 1049/2001.
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.
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.
Regulation (EC) No 1049/2001, recital (4).
Judgment in Sweden v Commission,
C-64/05 P, EU:C:2007:802, paragraph 66.
In addition, access is not granted to document 108, as very large parts fall outside the scope
of your request and the remaining parts are either covered by the exceptions set out in article
4(1)(a) third indent and 4(1)(b) of Regulation 1049/2001 or considered meaningless for
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 and section 4 considered whether partial access could be granted to the
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
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".
6 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"
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
and "have a negative effect on the negotiating position of the
as well as "reveal, indirectly, those of other parties to the negotiations".
Moreover, "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".
The EU and Indonesia are currently negotiating a free trade agreement.
Document 88 is the report of a meeting between Commissioner Malmström and the Minister
of Trade of Indonesia. Certain passages have been redacted as they reveal internal views
Judgment in Sison
C-266/05 P, EU:C:2007:75, paragraph 36.
Judgment in Council v Sophie in’t Veld
, C-350/12 P, EU:C:2014:2039, paragraph 63.
Judgment in Sophie in’t Veld v Commission
, T-301/10, EU:T:2013:135, paragraphs 123-125.
, paragraph 125.
either from the EU or from Indonesia. These views cannot be disclosed without undermining
the mutual trust and hence the negotiations between the EU and Indonesia as these views
could reveal strategic considerations of either side.
Documents 100 and 108 are reports of meetings with external stakeholders. Certain passages
of these documents have been withheld as their disclosure would reveal strategic interests,
priorities and business concerns of the EU. As such, this information could indirectly reveal
negotiating priorities, strategic objectives and tactics, which the EU could consider pursuing in
its trade negotiations.
More generally, it remains important for the EU when negotiating with its counterpart to
retain a certain margin of manoeuvre to shape and adjust its tactics, options and positions in
order to safeguard the EU's interests. Exposing internal views and considerations would
weaken the negotiating capacity of the EU and consequently, the protection of the public
interest as regards international relations.
There is a reasonably foreseeable risk that the public disclosure of the protected information
would undermine and weaken the position of the EU in its ongoing trade negotiations with
Indonesia. Indeed, the information contained in these documents would allow the EU’s
trading partner to draw conclusions with respect to certain detailed positions, concerns,
views and strategies of the Commission and of its Member States. This in turn may allow
the counterpart to extract specific concessions from the EU in the context the ongoing
negotiations, thus to the disadvantage of the EU’s international relations, and the interests of
its citizens, consumers and economic operators.
The EU, when negotiating with its counterpart - in this case Indonesia - needs to retain a
certain margin of manoeuvre to shape and adjust its tactics, options and positions in order to
safeguard the EU's interests. Exposing internal views and considerations would weaken the
negotiating capacity of the EU and consequently, the protection of the public interest as
regards international relations.
Furthermore, some of the withheld passages reveal the position of Indonesia. Such
disclosure is likely to upset the mutual trust between the EU and Indonesia and thus
undermine their relations. It may also jeopardise the mutual trust between the EU and other
trading partners as they may fear that in the future their positions would 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 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"
The abovementioned passages must, therefore, remain protected.
Judgment in Sophie in’t Veld v European Commission
, T-301/10, EU:T:2013:135, paragraph 126.
Protection of privacy and integrity of the individual
Pursuant to Article 4(1)(b) of Regulation (EC) No 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 European Union legislation regarding the protection
of personal data.
The applicable legislation in this field is Regulation (EC) No 2018/1725 of the European
Parliament and of the Council of 23 October 2018 on the protection of natural persons with
regard to the processing of personal data by the Union institutions, bodies, offices and agencies
and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and
Decision No 1247/2002/EC11 (‘Regulation 2018/1725’).
All the documents partially released as well as annex 3 to document 97 contain personal
information, such as names, e-mail addresses, telephone numbers that allow the
identification of natural persons, as well as other personal information like signatures.
Indeed, Article 3(1) of Regulation 2018/1725 provides that personal data "means any
information relating to an identified or identifiable natural person […]
". The Court of Justice
has specified that
any information, which by reason of its content, purpose or effect, is linked
to a particular person is to be considered as personal data.12 Please note in this respect that the
names, signatures, functions, telephone numbers and/or initials pertaining to staff members of
an institution are to be considered personal data.13
In its judgment in Case C-28/08 P (Bavarian Lager
)14, the Court of Justice ruled that when a
request is made for access to documents containing personal data, the Data Protection
Regulation becomes fully applicable15
Pursuant to Article 9(1)(b) of Regulation 2018/1725, personal data shall only be transmitted to
recipients established in the Union other than Union institutions and bodies if "[t]he recipient
establishes that it is necessary to have the data transmitted for a specific purpose in the public
interest and the controller, where there is any reason to assume that the data subject’s
legitimate interests might be prejudiced, establishes that it is proportionate to transmit the
personal data for that specific purpose after having demonstrably weighed the various
. Only if these conditions are fulfilled and the processing constitutes lawful
11 Official Journal L 205 of 21.11.2018, p. 39.
12 Judgment of the Court of Justice of the European Union of 20 December 2017 in Case C-434/16, Peter
Novak v Data Protection Commissioner
, request for a preliminary ruling, paragraphs 33-35,
13 Judgment of the General Court of 19 September 2018 in case T-39/17, Port de Brest v Commission
14 Judgment of 29 June 2010 in Case C-28/08 P, European Commission v The Bavarian Lager Co. Ltd
EU:C:2010:378, paragraph 59.
15 Whereas this judgment specifically related to Regulation (EC) No 45/2001 of the European Parliament and
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, the principles set out
therein are also applicable under the new data protection regime established by Regulation 2018/1725.
processing in accordance with the requirements of Article 5 of Regulation 2018/1725, can the
transmission of personal data occur.
According to Article 9(1)(b) of Regulation 2018/1725, the European Commission has to
examine the further conditions for a lawful processing of personal data only if the first
condition is fulfilled, namely if the recipient has established that it is necessary to have the data
transmitted for a specific purpose in the public interest. It is only in this case that the European
Commission has to examine whether there is a reason to assume that the data subject’s
legitimate interests might be prejudiced and, in the affirmative, establish the proportionality of
the transmission of the personal data for that specific purpose after having demonstrably
weighed the various competing interests.
In your application, you do not put forward any arguments to establish the necessity to have the
data transmitted for a specific purpose in the public interest. Therefore, we do not have to
examine whether there is a reason to assume that the data subject’s legitimate interests might be
Protection of commercial interests
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, including intellectual property […] unless there is an
overriding public interest in disclosure"
While not all information concerning a company and its business relations can be regarded
falling under the exception of Article 4(2) first indent16, 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 secrecy17. 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 "
Annex 3 to document 97 and some passages in documents 90, 91, 98, 106 and 110 have been
withheld because they contain business sensitive information pertaining to an organisation, a
company or group of companies, including details about commercial priorities, objectives,
strategies, concerns and interests that they pursue in their respective domains.
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. 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
Judgment in Terezakis v Commission
, T-380/04, EU:T:2008:19, paragraph 93.
See Article 339 of the Treaty on the Functioning of the European Union.
Judgment in Bank Austria v Commission,
T-198/03, EU:T:2006:136, paragraph 29.
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. Sharing publicly specific business related information that companies share
with the Commission may prevent the Commission from receiving access to such
information in the future.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(2) first indent 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
document 90, 91, 98, 106 and 110, as well as of the annex 3 to document 97, 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.
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
". Accordingly, we have also considered whether partial access could be granted to
annex 3 to document 97 and to document 108. However, and after a careful review, we have
concluded that this is not possible.
Annex 3 to document 97 is entirely covered by the exceptions described above and it is thus
impossible to disclose any parts of these documents without undermining the protection of
the interests identified in this reply.
As regards document 108, we have come to the conclusion that its releasable content would
be meaningless for disclosure. According to the General Court, the Commission is entitled
"to refuse partial access in cases where examination of the documents in question shows
that partial access would be meaningless because the parts of the documents that could be
disclosed would be of no use to the applicant
".19 Indeed, large parts of document 108 fall
outside the scope of your request and most of the parts falling within the scope are protected
by the exceptions described above. The little releasable information is also available in the
title of the document provided in the list of documents in Annex 1.
Judgment in Mattila v Council and Commission
, T-204/99, EU:T:2001:190, paragraph 69.
In case you disagree with the assessment contained 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:
Transparency, Document Management & Access to Documents (SG.C1)
or by email to: [correo electrónico]
Annex 1: List of documents
Documents plus annexes including fully and partially released documents