Ref. Ares(2018)5872016 - 16/11/2018
EUROPEAN COMMISSION
Brussels, 14.11.2018
C(2018) 7681 final
Mr Bram Vranken
Vredesactie
Patriottenstraat 27
2600 Berchem
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 –Gestdem 2017/7033
Dear Mr Vranken,
I refer to your email of 8 March 2018, registered on 9 March 2018, in which you submit,
on behalf of
Vredesactie, a confirmatory application in accordance with Article 7(2) of
Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council
and Commission documents2 ('Regulation 1049/2001').
1.
SCOPE OF YOUR REQUEST
On 21 November 2017, you submitted an initial application in which you requested
access to documents containing the following information:
‘1. Details of all stakeholders consulted (including member states, industry,
academia and others) on the decision to establish:
a) The European Defence Fund; and
b) The Defence Industrial Development Programme.
2. Details of all meetings, including minutes of meetings, with all stakeholders
identified under 1(a) and 1(b) respectively, in relation to:
1
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
http://ec.europa.eu/dgs/secretariat_general/
E-mail
: xxxxxxxxxx@xx.xxxxxx.xx
a)
The European Defence Fund; and
b)
The Defence Industrial Development Programme.
3. All correspondence with the stakeholders identified under 1(a) and 1(b)
respectively, in relation to:
a)
The European Defence Fund; and
b)
The Defence Industrial Development Programme.’
This application was registered under reference number Gestdem 2017/7033.
I note that on the same day, you submitted another initial application concerning
documents relating to the Group of Personalities on Defence Research. That application
was registered under the reference number Gestdem 2017/7037.
Both applications were attributed to the Directorate-General for Internal Market,
Industry, Entrepreneurship and SMEs for handling and reply.
On 23 February 2018, the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs provided its joint reply to your initial applications Gestdem
2017/7033 and 2017/7037.
In the reply, the Directorate-General for Internal Market, Industry, Entrepreneurship and
SMEs refused access to the relevant documents, on the basis of the exception protecting
the public interest as regards defence and military matters, provided for in the second
indent of Article 4(1)(a) of Regulation 1049/2001, as well as the exception protecting the
decision-making process, laid down in Article 4(3) of the said Regulation.
In your confirmatory application, you request a review of this position. In particular, you
argue that the reply of the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs does not provide any proper statement of reasons. You argue
that, ‘[t]he reasons [the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs] have put forward to justify the application of the exceptions
are strikingly vague and thus unsatisfactory’. Consequently, ‘[the Directorate-General for
Internal Market, Industry, Entrepreneurship and SMEs] ha[s] not explained how
disclosure can “specifically and actually” undermine the public interest […] as regards
defence and public security matters and why this is “reasonably foreseeable and not
purely hypothetical”, as required by case law […]’.
Additionally, you argue that there is an overriding public interest warranting, in your
view, the public disclosure of the documents concerned.
This confirmatory decision concerns only the documents identified as falling under the
scope of your application Gestdem 2017/7033. You will receive a separate reply to your
application Gestdem 2017/7037 in due course.
2
As regards application Gestdem 2017/7033, the European Commission has identified 39
documents falling under its scope. The complete list of the documents identified is
included in the annex to this decision.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General concerned at the initial stage.
Your initial application (point 1 and 2 thereof), relates to ‘[d]etails of all stakeholders
consulted […] on the decision to establish The European Defence Fund and The Defence
Industrial Development Programme’ and ‘[d]etails of all meetings, including minutes of
meetings, with the [above-mentioned] stakeholders […]’.
I consider that by ‘details of stockholders consulted’ and the ‘details of all meetings’, you
refer to documents containing, respectively, a list of ‘stakeholders consulted’ and the list
of meetings with the latter.
I confirm that the European Commission has not identified any such documents. In line
with the provisions of Article 2(3) and Article 10 of Regulation 1049/2001, the right of
access guaranteed by that Regulation applies only to existing documents in possession of
the institution concerned.
Article 2(3) provides that ‘[t]his Regulation shall apply to all documents held by an
institution, that is to say, documents drawn up or received by it and in its possession, in
all areas of activity of the European Union’.
Article 10(3) provides that ‘[d]ocuments shall be supplied in an existing version and
format […]’.
In the light of the above, given that the European Commission does not hold any of the
documents to which you refer to in your application, it is not possible to handle your
application, in so far as points 1 and 2 thereof are concerned.
With regard to the documents identified as falling under point 3 of your initial
application, after careful review of the initial decision, I conclude that wide partial access
is granted to documents 8, 16, 17, 18, 19, 21a, 21b, 21d, 22, 25a, 25b, 25c, 28, 29, 30, 31,
32, 35, 36 and 38. The limited redactions are based on the exception protecting privacy
and the integrity of the individual provided for in Article 4(1)(b) of Regulation
1049/2001.
Partial access is granted to documents 21c and 25d. The redacted parts of the documents
are covered by the exceptions protecting the public interest, as regards defence and
military matters and the decision-making process provided for in Article 4(1)(a), second
indent and Article 4(3), first subparagraph of Regulation 1049/2001.
3
With regard to the remaining documents 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 20,
23, 24, 26, 33, 34, 37 and 39, access is refused. The underlying exceptions are those
protecting the public interest, as regards defence and military matters and the decision-
making process provided for in Article 4(1)(a), second indent and Article 4(3), first
subparagraph of the above-mentioned Regulation 1049/2001.
Additionally, access is refused to document 27, based on the exception protecting the
commercial interests of a natural or legal person provided for in Article 4(2), first indent
of the said Regulation.
The detailed reasons are set out below.
2.1
Protection of the 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 undisclosed parts of documents 16, 17, 18, 19, 21a, 21b, 21d, 22, 25a, 25b, 25c, 29,
31, 35 and 36 contain the names, surnames, contact details (email and office addresses
and telephone numbers) of the staff members of the European Commission who do not
hold any senior management positions. The undisclosed parts of documents 8, 28, 29, 30,
32 and 35 contain also names, surnames, contact details (email addresses and telephone
numbers) of representatives and employees of third parties, such as authorities of the
Members States, organisations and economic operators.
Furthermore, the relevant undisclosed parts of documents 8, 17, 19, 21a, 21b, 21d, 22,
29, 31, 32, 36, 37, 38 contain biometric data (handwritten signatures of the staff members
of the European Commission or third party representatives).
These undoubtedly constitute personal data within the meaning of Article 2(a) of
Regulation 45/2001, which defines it as ‘any information relating to an identified or
identifiable natural person […]; an identifiable person is one who can be identified,
directly or indirectly, in particular by reference to an identification number or to one or
more factors specific to his or her physical, physiological, mental, economic, cultural or
social identity’.
It follows that public disclosure of all above-mentioned personal information, would
constitute processing (transfer) of personal data within the meaning of Article 8(b) of
Regulation 45/2001.
In accordance with the
Bavarian Lager ruling3, when a request is made for access to
documents containing personal data, Regulation 45/2001 becomes fully applicable.
According to Article 8(b) of that Regulation, personal data shall only be transferred to
3
Judgment of the Court (Grand Chamber) of 29 June 2010 in Case C-28/08 P,
European Commission v
the Bavarian Lager Co. Ltd,(ECLI:EU:C:2010:378), paragraph 63
.
4
recipients if the recipient establishes the necessity of having the data transferred and if
there is no reason to assume that the data subject's legitimate interests might be
prejudiced. Those two conditions are cumulative4.
Only if both conditions are fulfilled and the transfer constitutes lawful processing in
accordance with the requirements of Article 5 of Regulation 45/2001, can the processing
(transfer) of personal data occur.
In that context, whoever requests such a transfer must first establish that it is necessary. If
it is demonstrated to be necessary, it is then for the institution concerned to determine
that there is no reason to assume that that transfer might prejudice the legitimate interests
of the data subject5. Indeed, in its recent judgment in the
ClientEarth case, the Court of
Justice ruled that ‘whoever requests such a transfer must first establish that it is
necessary. If it is demonstrated to be necessary, it is then for the institution concerned to
determine that there is no reason to assume that that transfer might prejudice the
legitimate interests of the data subject. If there is no such reason, the transfer requested
must be made, whereas, if there is such a reason, the institution concerned must weigh
the various competing interests in order to decide on the request for access’6. I refer also
to the
Strack case, where the Court of Justice ruled that the institution does not have to
examine by itself the existence of a need for transferring personal data7.
Neither in your initial, nor in your confirmatory application, have you established the
necessity of disclosing the personal data included in documents 8, 16, 17, 18, 19, 21a,
21b, 21d, 22, 25a, 25b, 25c, 28, 29, 30, 31, 32, 35, 36 and 38.
Therefore, I conclude that the transfer of personal data through the public disclosure of
the personal data included in the above-mentioned documents cannot be considered as
fulfilling the requirements of Regulation 45/2001. Consequently, the use of the exception
under Article 4(1)(b) of Regulation 1049/2001 is justified, as there is no need to disclose
publicly the personal data included therein, and it cannot be assumed that the legitimate
rights of the data subjects concerned would not be prejudiced by such disclosure.
Furthermore, the handwritten signatures of the staff members of the European
Commission and third party representatives are biometric data and there is a risk that
their disclosure would prejudice the legitimate interests of the persons concerned.
2.1. Protection of the public interest as regards defence and military matters and
of the decision-making process
Article 4, paragraph 1, a), second 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 […] defence and military matters […].
4
Ibid, paragraphs 77-78.
5
Ibid.
6
Judgment of the Court of Justice of 16 July 2015 in Case C-615/13 P,
ClientEarth v EFSA,
(ECLI:EU:C:2015:219), paragraph 47.
7
Judgment of the Court of Justice of 2 October 2014 in Case C-127/13 P,
Strack v Commission,
(ECLI:EU:C:2014:2250), paragraph 106.
5
Article 4(3), first subparagraph of Regulation 1049/2001 provides that ‘access 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’.
In the case at hand, the two above-mentioned exceptions are interlinked and therefore the
corresponding reasons justifying their applicability are closely related.
In the
Kuijer judgment, the General Court (previously, Court of First Instance)
acknowledged that documents containing sensitive military information may have
sufficient features in common for their disclosure to be refused8.
Documents 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 20, 23, 24 and 34 contain positions of Member
States concerning implementation of the European Defence Industrial Development
Programme and the European Defence Fund. In particular, the documents concerned
include positions regarding the priorities of the work programme of the above-mentioned
Funds for 2019 - 2020, together with the description of characteristics of categories of the
projects to be financed.
Public disclosure of the above-mentioned documents would reveal information
concerning defence-related aspects of the EU, as well as possible actions that particular
Member States consider as priorities, thus indirectly revealing the information regarding
the lines of the EU and/or Member State domestic defence policies and interests. This
type of information is by nature sensitive as it relates to military (defence) needs in light
of, for example, present capabilities of the Member States and the political security
environment. That in turn would undermine the protection of the public interest as
regards defence matters, as provided for in the second indent of Article 4(1)(a) of
Regulation 1049/2001.
Indeed, the defence domain is particularly sensitive due to its very nature and its intrinsic
link with the Member States and EU security. This is particularly true given the unstable
international context and the fact that the EU faces a complex and challenging
environment in which new threats, such as hybrid and cyber-attacks, are emerging, and
more conventional challenges are returning.
Moreover, the defence domain is relatively recent in the EU context and requires the
exchange of information with Member States in order for the European Commission to
prepare properly its policy (translated into the work programmes of the European
Defence Industrial Development Programme and the European Defence Fund) in this
8 Judgment of the Court of first Instance of 7 February 2002 in C
ase T-211/00, Kuijer v Council,
ECLI:EU:T:2002:30, paragraph 60.
6
very specific domain. This exchange takes place in the framework of an atmosphere of
mutual trust. The Member States share this type of information with the European
Commission with the expectation that it will remain confidential and will not be made
publicly available.
Should the dialogue between the Commission and the Member States not remain
confidential, the latter would become very reluctant to continue the ongoing discussions.
Consequently, the decision-making process linked to the establishment and finalisation
of the Work Programmes would be undermined.
Documents 21c and 25d contain scoping papers of the European Commission, circulated
to the Member States in order to gather their inputs as regards the Work Programme of
the European Defence Industrial Development Programme and the various aspects of the
European Defence Fund after 2020. The undisclosed parts of the documents include a
description of policy options for the future shape of the above-mentioned programmes.
Revealing publically these policy options, would seriously undermine the margin for
manoeuvre of the European Commission' in exploring, in the framework of the ongoing
negotiations with the Member States, all possible (policy) options free from external
pressure. Similar type of information, in particular the description of various policy
options with regard to the financial instruments for defence and security purposes, is
included in documents 37 and 39.
It should be underlined that, in reply to the scoping papers mentioned above, the Member
States provided their views, which are included in documents 12, 13 and 33.
Additionally, documents 14 and 15 contain the positions of the Member States
concerning the financial issues relating to the European Defence Fund in the context of
the Multiannual Financial Framework. They also include the views of the originators
regarding various technical aspects concerning funding from the above-mentioned Fund
and the European Defence Industrial Development Programme (eligibility of cost,
funding schemes, reimbursement rates). The same type of information is included in
document 26, originating from the Association of European Research Establishments in
Aeronautics.
Public disclosure of the information included therein would undermine the ongoing
dialogue between the stakeholders (including the Member States), which, as mentioned
above, requires an atmosphere of mutual trust, especially in the context of the sensitivity
of the subject matter to which they relate.
Having regard to the above, I consider that the use of the exceptions under Article
4(1)(a), second indent (protection of the public interest as regards defence and military
matters) and Article 4(3), first subparagraph, of Regulation 1049/2001 is justified
concerning documents 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12,13, 14, 15, 20, 21c, 23, 24, 25d ,26,
33, 34, 37 and 39 and that access thereto must be refused on that basis.
7
2.2 Protection of commercial interests of a natural or legal person
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’.
Document 27, which is the report from the meeting with representatives of the company
Safran, includes information about the involvement of the latter in various proposals
financed through EU funds, as well as suggestions concerning types of research projects
for which EU funding could be considered.
The above-mentioned information has to be considered as commercially sensitive
business information of the economic operator in question (Safran).
Its disclosure under Regulation 1049/2001, through the public release of document 27
would clearly undermine the commercial interests of the economic operator in question.
It can be presumed that the latter provided the commercially sensitive information
contained in document 27 under the legitimate expectation that it would not be publicly
released.
In consequence, there is a real and non-hypothetical risk that public access to the above-
mentioned information would undermine the commercial interests of the economic
operator in question. I conclude, therefore, that access to document 27 must be denied
based on the exception laid down in the first indent of Article 4(2) of Regulation
1049/2001.
3.
PARTIAL ACCESS
Wide partial access is granted to documents 8, 16, 17, 18, 19, 21a, 21b, 21d, 22, 25a,
25b, 25c, 28, 29, 30, 31, 32, 35, 36, 38 and partial access is granted to documents 21c and
25d. With regard to the remaining documents, for the reasons explained above, no
meaningful partial access is possible as regards the requested documents without
undermining the interests described above.
4.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(1)(a) and Article 4(1)(b) of Regulation 1049/2001
do not need to be balanced against overriding public interest in disclosure.
The exceptions laid down in Article 4(2) and (3) of Regulation 1049/2001 must be
waived if there is an overriding public interest in disclosure. Such an interest must,
firstly, be public and, secondly, outweigh the harm caused by disclosure.
In your confirmatory application, you refer to the general need of transparency, which, in
your view, should be ensured with regard to exchanges between the European
Commission and external actors concerning the European Defence Industrial
Development Programme and the European Defence Fund. You underline ‘the existence
of an overriding public interest in disclosure, stemming from the enhanced public debate
8
and increased accountability concerning the arms industry's influence on EU defence
policy […]’. In your view, ‘[…] getting a proper overview of the arms industry's
lobbying in respect of these initiatives [the European Defence Industrial Development
Programme and the European Defence Fund] (ultimately funded by EU taxpayers) is
essential for the ability of EU citizens and the civil society to participate more fully in
those decision-making processes as well as to oversee that the decisions taken by the
European Commission are in the sole interest of EU citizens rather than being beholden
to the arms lobby’.
Even if members of the public have expressed an interest in the subject matter covered by
the documents requested and have pointed to an alleged general need for public
transparency related thereto, I would like to refer to the judgment in the
Strack case9,
where the Court of Justice ruled that in order to establish the existence of an overriding
public interest in transparency, it is not sufficient to rely merely on that principle and its
importance. Instead, an applicant has to show why in the specific situation the principle
of transparency is in some sense especially pressing and capable, therefore, of prevailing
over the reasons justifying non-disclosure10.
Based on my own analysis, I have not been able to identify any elements capable of
demonstrating the existence of a public interest that would override the need to protect
the commercial interest of economic operators and ongoing decision-making process
concerning various technical aspects of the European Defence Industrial Development
Programme and the European Defence Fund, grounded in the first indent of Article 4(2)
and the first subparagraph of Article 4(3) of Regulation 1049/2001.
9 Judgment of the Court of Justice of 2 October 2014 in Case C-127/13 P,
Strack v European
Commission, (ECLI:EU:C:2014:2250), paragraph 128.
10 Ibid, paragraph 129.
9
5.
MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress that are available
against this decision, that is, judicial proceedings and complaint to the Ombudsman
under the conditions specified respectively in Articles 263 and 228 of the Treaty on the
Functioning of the European Union.
Yours sincerely,
For the Commission
Martin SELMAYR
Secretary-General
Annex:
- List of documents covered by your application,
- Copies of the documents to which partial access is granted.
10
Document Outline