C(2019) 4962 final
Ms Josefina Marti
Calle Juan Bravo 62
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject: Your confirmatory applications for access to documents under Regulation
(EC) No 1049/2001 – GESTDEM 2019/1246
Dear Ms Marti,
I refer to your email of 29 March 2019, registered on 4 April 2019, in which you submit 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
(hereafter ʻRegulation (EC) No 1049/2001ʼ).
SCOPE OF YOUR REQUEST
On 27 February 2019, you submitted an initial application for access to documents under
Regulation (EC) No 1049/2001 to the Directorate-General for Climate Change, in which
you requested access to:
ʻAll agendas, minutes, notes, documents, presentations, videos (and any other
information) produced and exchanged in the 7 meetings registered between
Commissioner Miguel Arias Cañete and CIDSE (An international alliance of
Catholic development agencies);
A list of all the people present at each meeting and their roles;
All the correspondence (including phone calls, e-mails, letters) between
Commissioner Miguel Arias Cañete (or any member of his Cabinet) and CIDSE
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. +32 229 91111
This application was registered under reference number GESTDEM 2019/1246.
By e-mail of 19 March 2019, the Directorate-General for Climate Change sent you a
proposal for a fair solution, based on Article 6(3) of Regulation (EC) No 1049/2001.
It informed you that your application concerns extensive timeframe (in particular point 3)
and potentially a considerable number of documents, still to be identified and assessed. You
kindly agreed to narrow down the temporal scope of your request to a shorter timeframe
(from 2018 to the day of your request).
In light of the above, the European Commission has identified the following document,
originating from a third party, as falling under the scope of your application:
Letter of 13 July 2018 from the Bishops’ Conferences of the European Union to
Commissioner Cañete (Ares(2018)3738271).
Under the provisions of Article 4(4) of Regulation (EC) No 1049/2001, with regard to third
party documents, the institution shall consult the third party with a view to assessing
whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document
shall or shall not be disclosed. In accordance with this provision, the Directorate-General for
Climate Change consulted the third party author of the document (the Bishops’ Conferences
of the European Union), who agreed with wide partial access to this document, subject only
to the redactions of personal data, in accordance with Article 4(1)(b) (protection of privacy
and the integrity of the individual) of Regulation (EC) No 1049/2001.
Through your confirmatory application you request a review of this position. You argue that
ʻpoint 1 and 2 are not answeredʼ and ʻin point 3, I agreed to reduce the period only to one
year, because you explained there were many documents concerning this request and there
wasn’t time enough to cope with more years.ʼ
Furthermore, you state that ʻthis is why I ask again for all the time-lapse I requested in the
first placeʼ. This extend the scope of your initial request for access to documents as agreed
with you after the fair solution proposal. Consequently, this part of your request covering all
the correspondence (including phone calls, emails and letters) between Commissioner
Miguel Arias Cañete (or any member of his Cabinet) and CIDSE from 2014 to January 2018
falls outside the scope of this confirmatory decision and will be registered as a new initial
request, which will be dealt with by the Directorate-General for Climate Change in due
In your confirmatory application, you do not question the redactions of personal data in the
document disclosed to you at the initial stage which is why I consider these parts as falling
outside the scope of this confirmatory decision.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant to
Regulation (EC) No 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General concerned at the initial stage.
Following this renewed search, I confirm that the European Commission does not hold any
further documents that would correspond to the description given in points 1, 2 and 3 of your
application other than the one already identified by the Directorate-General for Climate Change
in its initial reply.
Indeed, as specified in Article 2(3) of Regulation (EC) No 1049/2001, the right of access as
defined in that regulation applies only to existing documents in the possession of the
institution. I would like to refer in this respect to the judgment of the Court of Justice in
Case C-127/13 P (Strack v European Commission
), according to which ‘[n]either Article 11
of Regulation 1049/2001 nor the obligation of assistance in Article 6(2) thereof, can oblige
an institution to create a document for which it has been asked to grant access but which
does not exist’.3
The above-mentioned conclusion has been confirmed in Case C-491/15 P
(Typke v European Commission
), where the Court of Justice held that ‘the right of access to
documents of the institutions applies only to existing documents in the possession of the
institution concerned and […] Regulation No 1049/2001 may not be relied upon to oblige
an institution to create a document which does not exist. It follows that […] an application
for access that would require the Commission to create a new document, even if that
document were based on information already appearing in existing documents held by it,
falls outside the framework of Regulation No 1049/2001’.4
Furthermore, the General Court held in Case T-468/16 (Verein Deutsche Sprache v
that there exists a presumption of lawfulness attached to the
declaration by the institution asserting that documents do not exist.5 This presumption
continues to apply, unless the applicant can rebut it by relevant and consistent evidence.6
The Court of Justice, ruling on an appeal in Case C-440/18 P, has recently confirmed these
Given that the European Commission does not hold any further documents corresponding to
the description given in your application, it is not in a position to fulfil your request.
3 Judgment of the Court of Justice of 2 October 2014, Strack v European Commission
, C-127/13 P,
EU:C:2014:2250, paragraph 46.
4 Judgment of the Court of Justice of 11 January 2017, Typke v European Commission, C-491/15 P,
EU:C:2017:5, paragraph 31.
Judgment of the General Court of 23 April 2018, Verein Deutsche Sprache v European Commission
EU:T:2018:207, paragraphs 35-36.
Order of the Court of Justice of 30 January 2019, Verein Deutsche Sprache v Commission
, C-440/18 P,
EU:C:2019:77, paragraph 14.
MEANS OF REDRESS
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
European Ombudsman under the conditions specified respectively in Articles 263 and 228
of the Treaty on the Functioning of the European Union.
For the Commission