Document 1
Ref. Ares(2020)587318 - 30/01/2020
EUROPEAN COMMISSION
Brussels, 23.12.2018
C(2018) 9224
FFII
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - Gestdem 2017/5658
Dear
,
I refer to your email of 8 August 2018, registered on the same day, 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 ‘Regulation 1049/2001’).
1.
SCOPE OF YOUR REQUEST
In your initial application of 20 October 2017, you requested access to the negotiation
mandate and negotiating documents related to the Free Trade Agreement between the
European Union and the Republic of Korea.
In its reply, the Directorate-General for Trade identified 15 documents, listed in the
annex to its reply, as falling under the scope of your application. It granted partial access
to documents 9 to 15. The redactions were based on Article 4(1)(a), third indent, of
Regulation 1049/2001 (protection of the public interest as regards international relations)
with regard to documents 9 to 12 and Article 4(1)(b) of Regulation 1049/2001 (protection
of privacy and the integrity of the individual) with regard to documents 13 to 15.
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
With regard to documents 1 to 8, access was fully refused, based on the protection of the
public interest as regards international relations and the protection of privacy and the
integrity of the individual, provided for respectively by Article 4(1)(a), third indent, and
Article 4(1)(b) of Regulation 1049/2001.
In your confirmatory application, you request a review of this position and present
arguments supporting this request. You also ask for the following additional documents:
‘the EU proposal on intellectual property rights sent to [the Republic of Korea]
via an email dated April 20, 2009;
the Korean message sent to the EU on May 7, 2009;
letter of the EU Chair […] that the criminal enforcement should be included in
the final text of the Agreement;
record of a telephone conversation agreed on June 5, 2009;
negotiation documents [exchanged] between the [Republic of Korea] and [the]
EU on the [intellectual property rights] criminal proposal until September 2009’.
Your arguments have been taken into account in our assessment, the results of which are
described below.
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 relevant Directorate-General at the initial stage.
Following a renewed search for documents, the Commission services have identified the
following additional documents:
cover e-mail containing a flash report of a videoconference with the Republic of
Korea and its attachment (the Korean counter-proposal), dated 12 June 2009
(‘document 16’);
cover e-mail containing details on the videoconference with the Republic of Korea
and its attachment (the same Korean counter-proposal), dated 10 June 2009
(‘document 17’);
cover e-mail and its attachment containing the EU’s proposal on intellectual
property rights enforcement dated 20 April 2009 (‘document 18’);
cover e-mail and its attachment containing the criminal enforcement provisions to
be inserted into the Free Trade Agreement between the EU and the Republic of
Korea dated 22 May 2009 (‘document 19’);
cover e-mail and its attachment containing the negotiating document representing
the position of EU Member States on criminal provisions, dated 9 July 2009
(‘document 20’).
2
Please find attached an updated list of documents.
Following the review by the Secretariat-General of the reply given by the Directorate-
General for Trade at the initial stage, I can inform you that:
- partial access is granted to documents 1 to 8 identified at the initial stage, as well as to
documents 16 to 20 identified at the confirmatory stage; and
- no further access is granted to documents 9 to 15, to which partial access was given at
the initial stage.
The redacted parts of the documents are based on the exceptions relating to the protection
of the public interest as regards international relations and the protection of privacy and
the integrity of the individual, provided for respectively by Article 4(1)(a), third indent,
and Article 4(1)(b) of Regulation 1049/2001. Please note that, in the annexes, the
applicable exceptions are indicated beside each redaction by reference to the applicable
Article of Regulation 1049/2001.
Consultation of the national authorities and the Council
According to Articles 4(4) and 4(5) of Regulation 1049/2001, the institution shall consult
the Member States with a view to assessing whether an exception in paragraph 1 or 2 is
applicable, unless it is clear that the document(s) shall or shall not be disclosed.
Two of the documents requested originate respectively from the (then) Czech and
Swedish presidencies of the Council. Under the provisions of Article 4(4) of Regulation
1049/2001 and with a view to taking into account the arguments put forward in your
confirmatory application, the consultation of the Czech and Swedish authorities was
initiated by the Secretariat-General at the confirmatory stage.
The Czech authorities agreed with the disclosure of document 19, provided that personal
data was redacted from the cover e-mail. The Swedish authorities agreed with the
disclosure of document 20.
The Council of the European Union was also re-consulted at the confirmatory stage
regarding the possible further disclosure of parts of the negotiating mandate (documents
13, 14 and 15). In its reply, the Council of the European Union indicated that the
disclosure of further information would reveal nuances of the EU's negotiating strategy,
weakening its position in future negotiations on free trade agreements.
Therefore, having due regard to the protection of the public interest as regards
international relations, as provided for by Article 4(1)(a), third indent, of Regulation
1049/2001, the Council of the EU opposed further public access to the documents in
question beyond what has been provided so far.
Taking into account the reply provided by the above-mentioned authorities, partial access
is granted to documents 19 and 20, subject only to the redaction of personal data in
accordance with Article 4(1)(b) of Regulation 1049/2001.
3
No further access to the documents emanating from the Council of the European Union is
granted pursuant to the exception of Article 4(1)(a), third indent, of Regulation
1049/2001 (protection of the public interest as regards international relations).
2.1
Protection of the public interest as regards international relations
(concerning documents 1 to 8 and 13 to 17)
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 […]’.
In accordance with settled case law, ‘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’3.
The Court of Justice has held that elements revealing the specific contents of an
agreement under negotiation or the EU's strategic objectives can warrant protection
according to the above-mentioned provision4.
Moreover, in the
In 't Veld case, the General Court expressly alluded to the possibility
that the protection of the public interest as regards international relations within the
meaning of Article 4(1)(a), third indent, of Regulation 1049/2001 ‘can justify
maintaining the confidentiality of the negotiating documents for a certain period after the
end of those negotiations’5.
Furthermore, the General Court stressed that ‘the institutions enjoy a wide discretion
when considering whether access to a document may undermine the public interest and,
consequently, that the Court’s review of the legality of the institutions’ decisions refusing
access to documents on the basis of the mandatory exception […] relating to the public
interest must be limited to verifying whether the procedural rules and the duty to state
reasons have been complied with, the facts have been accurately stated, and whether
there has been a manifest error of assessment of the facts or a misuse of powers’6.
Documents 1 to 8 are internal reports that do not represent the official positions of the
European Union and the Republic of Korea on the negotiations. The undisclosed parts of
these documents represent the personal opinions of Commission staff regarding the
Republic of Korea’s role, motivations and stance with respect to the international
negotiations related to the free trade agreement. They also indicate prospects for the
future EU-Korea relationship and the EU’s policy options and approach towards the
Republic of Korea and other third countries on questions that are not only related to
3 Judgment of 19 March 2013 in Case T-301/10,
In 't Veld v Commission, EU:T:2013:135, paragraph
125.
4 Judgment of 3 July 2014 in Case C-350/12,
Council v In ‘t Veld,
EU:C:2014:2039, paragraph 109.
5 Judgment of 19 March 2013 in Case T-301/10,
In 't Veld v Commission, EU:T:2013:135, paragraph
127.
6 Judgment of 25 April 2007 in Case T-264/04
WWF European Policy Programme v Council,
EU:T:2007:114, paragraph 40.
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intellectual property rights issues. They include sensitive issues, the release of which
would undermine the climate of confidence between the European Union and the
Republic of Korea, and more widely between the European Union and other third
countries.
More specifically, some of the undisclosed parts of documents 1 to 8 contain sensitive
comments regarding the EU’s approach, tactics and options in the context of the
negotiations with the Republic of Korea. Even if the negotiations with the Republic of
Korea have been concluded and the agreement was signed in 2010 and has been
provisionally applied since 2011, there is a reasonably foreseeable risk that the public
disclosure of these comments would undermine the position of the EU in its ongoing
negotiations with other third countries. Indeed, disclosure at this stage would reveal
negotiation tactics, sequencing and potential trade-offs discussed, which, if they were
known to the trading partners of the EU, would allow them to foresee and calculate the
EU’s behaviour in international trade negotiations. If it were to be foreseen how the EU
reacts in certain situations during trade negotiations, the ability of the EU to negotiate the
best possible deal for its citizens would be seriously hampered.
At the same time, even if the free trade agreement with the Republic of Korea is now
being implemented, discussions with the Republic of Korea on the implementation of
this agreement and potentially its renegotiation continue, in order to ensure proper and
effective implementation of the commitments taken and potentially to upgrade those
commitments. As explained above, the information reflected in the undisclosed parts of
documents 1 to 8 remains relevant in the framework of the ongoing discussions within
the EU, and between the EU and the Republic of Korea, as part of the implementation of
the Free Trade Agreement. These discussions take place in particular within the various
committees established under the free trade agreement, which aim to ensure proper and
effective implementation of all the commitments taken. For example, the EU continues to
discuss certain elements of implementation related to copyright and geographical
indications. These may eventually also lead to legal dispute settlement procedures being
initiated. Pursuant to Article 17(3) of the Treaty on the Functioning of the European
Union, ‘[i]n carrying out its responsibilities, the Commission shall be completely
independent’.
In order to preserve its negotiating capacity and strategic space in the context of these
ongoing discussions with the counterparts of the Republic of Korea, the European
Commission has the obligation to ensure that opinions reflected in the documents drawn
up for internal use do not reveal the EU’s approach, tactics and options in the context of
future negotiations with third countries as well as in the implementation of the agreement
with the Republic of Korea.
Finally, some parts of the documents reveal directly or indirectly the position of the
Republic of Korea or contain sensitive comments and information about third countries
and the intentions of the EU on future negotiations. On the one hand, the disclosure of
such parts is likely to upset the mutual trust between the EU and not only the Republic of
Korea, but also other trading partners, as these partners would fear that their position
5
would be exposed in the future. Revealing the negotiating tactics (and timing of certain
statements in the negotiations) as well as elements of the Korean positioning could
therefore harm the EU’s interests in future similar negotiations as it would make the
Republic of Korea and potentially other trading partners less willing to discuss certain
matters in confidence during negotiations. Revealing such details would consequently
jeopardise the future relationship between the EU and the Republic of Korea by making
the Korean representatives more guarded about sharing information and positions with
European Commission’s staff. On the other hand, the disclosure of sensitive information
and the intentions of the EU on future negotiations regarding third countries would harm
bilateral relations with those countries.
Against this background, I consider that the public disclosure of the redacted parts of
documents 1 to 8 would negatively affect the ability of the European Commission to
defend effectively the EU’s interests in the context of ongoing discussions with the
Republic of Korea regarding the implementation of the free trade agreement, or with any
other third country with which the EU is or may be negotiating. I consider that risk as
reasonably foreseeable and non-hypothetical, as such public disclosure would reveal the
institution's approaches and preferences, as well as political analysis, thus weakening its
negotiation position towards its counterparts.
Documents 13 to 15 are the final negotiating directives, i.e. the above-mentioned
negotiating mandate given by the Council of the European Union. As explained by the
Directorate-General for Trade in its initial reply, there is a reasonably foreseeable risk
that the public disclosure of the undisclosed parts of these documents would undermine the
position of the European Union in its ongoing trade negotiations with other third
countries, as it would allow the latter to draw conclusions with respect to certain detailed
positions, concerns, views and strategies of the European Commission and its Member
States.
Access to the Republic of Korea’s counter-proposal attached to the cover e-mails of
documents 16 and 17 has to be refused, as any unwarranted disclosure of documents
shared in confidence by the EU's partners would risk seriously jeopardising future
negotiations. Indeed, as any form of negotiation necessarily entails a number of tactical
considerations by the negotiators, cooperation between the parties depends to a large
extent on the existence of a climate of mutual trust. In this context, please note that the
cover e-mails, which contain the technical details of the video-conference between the
EU and the Republic of Korea as well as the flash report of the meeting with the
Republic of Korea, are the relevant documents with regard to your request for access to
the ‘records of a telephone conversation as agreed upon on 5 June 2009’.
Even if access is refused to the Republic of Korea’s counter-proposal attached to
documents 16 and 17, full access is granted to the EU’s proposals on criminal
enforcement provisions to be inserted into the free trade agreement (attached to the cover
e-mails of documents 18, 19 and 20).
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Having regard to the above, I consider that the use of the exception under Article 4(1)(a),
third indent, of Regulation 1049/2001 (protection of the public interest as regards
international relations) is justified, and that access to the parts of documents in question
must be refused on that basis.
2.2
Protection of the privacy and integrity of the individual (concerning
documents 1 to 3, 5 to 12 and 16 to 20)
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’.
In its
Bavarian Lager judgment7, the Court of Justice ruled that when a request is made
for access to documents containing personal data, 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 data8
(‘Regulation 45/2001’) becomes fully applicable.
Please note that, on 11 December 2018, Regulation 45/2001 was repealed by Regulation
(EU) 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/EC9
(‘Regulation 2018/1725’).
However, the case law issued with regard to Regulation 45/2001 remains relevant for the
interpretation of Regulation 2018/1725.
In the above-mentioned judgment, the Court stated that Article 4(1)(b) of Regulation
1049/2001 ‘requires that any undermining of privacy and the integrity of the individual
must always be examined and assessed in conformity with the legislation of the Union
concerning the protection of personal data, and in particular with […] [the Data
Protection] Regulation’.10
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
7
Judgment of 29 June 2010 in Case C-28/08 P,
European Commission v the Bavarian Lager Co. Ltd,
EU:C:2010:378, paragraph 63
.
8
Official Journal L 8 of 12.1.2001, page 1.
9
Official Journal L 205 of 21.11.2018, p. 39.
10 Judgment in
European Commission v the Bavarian Lager Co. Ltd, cited above, EU:C:2010:378,
paragraph 59.
7
confirmed that ‘there is no reason of principle to justify excluding activities of a
professional […] nature from the notion of private life’.11
The relevant undisclosed parts of the documents in question contain the names, surnames
and contact details (e-mail addresses) of staff members of the European Commission and
of the Korean delegation who do not hold any senior management position. Documents
19 and 20 also contain personal data of (non-senior) national representatives of the
presidency of the Council.
The names12 of the persons concerned, as well as other data from which their identity can
be deduced, undoubtedly constitute personal data in the meaning of Article 3(1) of
Regulation 2018/1725.
According 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 competing interests’. Only if these conditions are
fulfilled and the processing constitutes lawful processing in accordance with the
requirements of Article 5 of Regulation 2018/1725, can the transmission of personal data
occur.
In its judgments in the
ClientEarth and
Strack cases, the Court of Justice ruled that the
institution does not have to examine by itself the existence of a need for transferring
personal data.13 This is also clear from Article 9(1)(b) of Regulation 2018/1725, which
requires that the necessity to have the personal data transmitted must be established by
the recipient.
According to Article 9(1)(b) of Regulation 2018/1725, the European Commission has to
examine the further conditions for the lawful processing of personal data only if the first
condition is fulfilled, namely if the recipient establishes 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 initial and confirmatory applications, you do not establish the necessity of having
the data in question transferred to you for a specific purpose in the public interest.
11 Judgment of 20 May 2003 in Joined Cases C-465/00, C-138/01 and C-139/01,
Rechnungshof and
Österreichischer Rundfunk, EU:C:2003:294, paragraph 73.
12 Judgment in
Commission v the Bavarian Lager, cited above, EU:C:2010:378, paragraph 68.
13 Judgment of 16 July 2015 in Case C-615/13 P,
ClientEarth v European Food Safety Agency,
EU:C:2015:489, paragraph 47; judgment of 2 October 2014 in Case C-127/13 P,
Strack v
Commission, EU:C:2014:2250, paragraph 106
8
Therefore, the European Commission does not have to examine whether there is a reason
to assume that the data subjects’ legitimate interests might be prejudiced.
Notwithstanding the above, there are reasons to assume that the legitimate interests of the
data subjects concerned would be prejudiced by the disclosure of the personal data
reflected in the documents, as there is a real and non-hypothetical risk that such public
disclosure would harm their privacy and subject them to unsolicited external contacts.
Therefore, the use of the exception under Article 4(1)(b) of Regulation 1049/2001 is
justified, as the need to obtain access to the personal data included therein for a purpose
in the public interest has not been substantiated and there is no reason to think that the
legitimate interests of the individuals concerned would not be prejudiced by such
disclosure.
3.
PARTIAL ACCESS
In line with Article 4(6) of Regulation 1049/2001, I have examined the possibility of
granting partial access to documents 1 to 8, which were withheld in their entirety at the
initial stage. Partial access is provided to these documents. Please find attached the
redacted versions of these documents. The limited undisclosed parts are covered by the
exceptions provided for by Article 4(1)(a), third indent, and Article 4(1)(b) of Regulation
1049/2001.
I have also examined the possibility of granting further access to documents 9 to 15,
which were partially disclosed at the initial stage. No further access is, however, possible,
given that the undisclosed parts of these documents are covered by the above-mentioned
exceptions.
In addition, please note that partial access is granted to documents 16 to 20, which were
identified at the confirmatory stage. Please find attached the redacted versions of these
documents. Please note that the annexes to documents 16 and 17, which are in both cases
the same document, are not attached, as these annexes are, for the reasons mentioned
under point 2.1, entirely covered by the exception provided for by Article 4(1)(a), third
indent. As to documents 18 to 20, only personal information is redacted in accordance
with Article 4(1)(b) of Regulation 1049/2001.
As mentioned above, the applicable exceptions are indicated in the annexes beside each
redaction by reference to the applicable Article of Regulation 1049/2001.
4.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(1)(a) and Article 4(1)(b) of Regulation 1049/2001
are absolute exceptions, i.e. their applicability does not need to be balanced against any
overriding public interest in disclosure. Therefore, the Commission is not obliged to
examine the existence of an overriding public interest in disclosure.
I note, however, that you invoke in your confirmatory application an overriding public
interest that warrants, according to you, public disclosure of the (parts of) the documents
9
concerned. You argue indeed that ‘the [European] Commission's assessment is not in line
with its new transparency initiative. For instance, in new negotiations, mandates, textual
proposals and position papers are published. Publication of these texts does not harm the
public interest.’
In this context, I would like to clarify that while there could indeed be a public interest in
this sense, I consider that any pressing need in favour of full public disclosure of the
requested documents has not been substantiated in this case. Such a public interest has
already been satisfied by the partial disclosure of the above-mentioned documents. In this
context, please note that 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, but that an applicant has to show in a specific situation why
the principle of transparency is in this case especially pressing and capable, therefore, of
prevailing over the reasons justifying non-disclosure14.
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 complaints 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 European Commission
Martin SELMAYR
Secretary-General
Enclosures: 18
14 Judgment of 2 October 2014 in Case C-127/13 P,
Strack v Commission, EU:C:2014:2250, paragraphs
128 and 129.
10