Ref. Ares(2020)5307785 - 07/10/2020
EUROPEAN COMMISSION
NEIGHBOURHOOD AND ENLARGEMENT NEGOTIATIONS
The Acting Director-General
Brussels,
Subject:
Your applications for access to documents – Ref. GestDem
2020/4880, GestDem 2020/5102, GestDem 2020/5103, GestDem
2020/5130, GestDem 2020/5259, GestDem 2020/5274, GestDem
2020/5275 and GestDem 2020/5343
Dear Mr Dohle,
I refer to the reply sent on 18 September 20201, which concerned your applications for
access to documents registered under the references GestDem 2020/4880, GestDem
2020/4882, GestDem 2020/5102, GestDem 2020/5130, GestDem 2020/5274, GestDem
2020/5275 and GestDem 2020/5343. As mentioned in the letter, my services have
continued to search in the archives for the remaining documents.
This reply concerns the following requests:
- GestDem 2020/4880: The annex to
the note dated 28 November 2002, “Romania
– progress in child protection”, registration no. D(2002) 95602;
- GestDem 2020/5102: The annex to the note for the file dated 18 September 2002,
“Children Romania / SERA / Mr. de Combret”, registration no. D(2002) 95434;
- GestDem 2020/5103: The note for the file dated 8 July 1992, “Orphelinats
roumains et Monsieur de Combret”;
1 Ref. Ares(2020)4903809.
Mr Arun Dohle
Easy Start Office
Kraijenhoffstraat 137A
Amsterdam NL 1018RG
The Netherlands
By email only:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx; xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx;
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx; xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx;
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
- GestDem 2020/5130: The note for the file dated 20 May 2005, “Meeting
concerning the Romanian legislation on Children’s Rights and Adoption”,
registration no. D(2005)799, together with its annexes;
- GestDem 2020/5259: Minutes of the team meeting of the Romania team of DG
ELARG, 22 June 2005;
- GestDem 2020/5274: The annex to the note for the File dated 19 April 2004,
“The Hague Convention”, registration no. D(2004)101624;
- GestDem 2020/5275: Letter and its annex of Prime Minister Adrian Năstase to
Commissioner for Enlargement Gunter Verheugen, dated 5 March 2004;
- GestDem 2020/5343: The annex to the note for the file dated 31 January 2002,
“US non-paper on Romania's adoption policy”, registration no. D(2002)95039.
Based on internal consultation and research in the Commission archives, and having
examined the documents identified under the provisions of Regulation (EC) No
1049/20012, I have decided that:
1) Full access can be granted to:
- GestDem 2020/5274: The annex to the note for the file dated 19 April 2004,
“The Hague Convention”, registration no. D(2004)101624. Please note that the
annex is a public document and it can be accessed at the following link:
https://pace.coe.int/en/files/16775
2) Partial access, subject to redaction only of personal data, in accordance with
Article 4(1)(b) (protection of the privacy and integrity of the individual) of
Regulation (EC) No 1049/2001 can be granted to:
- GestDem 2020/4880: The annex to the note dated 28 November 2002,
“Romania – progress in child protection”, registration no. D(2002) 95602;
- GestDem 2020/5102: The annex to the note for the file dated 18 September
2002, “Children Romania / SERA / Mr. de Combret”, registration no.
D(2002) 95434;
- GestDem 2020/5130: The note for the file dated 20 May 2005, “Meeting
concerning the Romanian legislation on Children’s Rights and Adoption”,
registration no. D(2005)799, together with its annexes.
3) Access must be refused to:
- GestDem 2020/5103: The note for the file dated 8 July 1992, « Orphelinats
roumains et Monsieur de Combret »;
- GestDem 2020/5343: The annex to the note for the file dated 31 January
2002, “US non-paper on Romania's adoption policy”, registration no.
D(2002)95039.
Disclosure of these documents is prevented by the exceptions to the right of access laid
down in Article 4(1)(b) (protection of the privacy and integrity of the individual) of
Regulation (EC) No 1049/2001 and Article 4(3), second subparagraph, of the same
Regulation (protection of the decision-making process).
I regret to inform you that following extensive researches, the document requested under
GestDem 2020/5275 could not be retrieved in the European Commission archives, as due
2 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding
public access to European Parliament, Council and Commission documents, Official Journal L 145 of 31
May 2001, p. 43.
2
to a technical error, it was not uploaded electronically in the Adonis registration system
which was in place in 2004.
With regard to request GestDem 2020/5259: I refer to the request for clarification sent by
my services on 25 September 20203 in which we informed you that based on the
description provided in your application, we had not been able to identify the document
requested, and therefore, we asked you to provide us with more detailed information on
the document, such as any other reference which might facilitate our searches in the internal
systems of the Commission. I note that so far you have not replied to our request. Please be
informed that in accordance with the third paragraph of Article 2 of the Detailed rules4 for
the application of Regulation (EC) No 1049/2001, the deadline of 15 working days for
handling your application will start running when we receive the requested clarifications.
With regard to request GestDem 2020/51295: the reply to this request will be sent by
separate letter.
The justifications for the partial disclosure or refusal of access for the documents listed
above are as follows:
1. Protection of the privacy and the integrity of the individual
Complete disclosure of the documents is prevented by the exception concerning the
protection of privacy and the integrity of the individual outlined in Article 4(1)(b) of
Regulation (EC) No 1049/2001. In particular, these documents contain names of
Commission staff members not pertaining to the senior management, hand written
signatures, photos which can lead to the identification of individuals and CVs of third
parties.
Article 9(1)(b) of the Data Protection Regulation6 does not allow the transmission of
these personal data, except if you prove that it is necessary to have the data transmitted to
you for a specific purpose in the public interest and where there is no reason to assume
that the legitimate interests of the data subjects might be prejudiced. In your requests,
you do not express any particular interest to have access to these personal data, nor do
you put forward any arguments to establish the necessity to have the data transmitted for
a specific purpose in the public interest.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data contained in the requested
documents, as the need to obtain access thereto 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 disclosure of the personal data
concerned.
2. Protection of the decision-making process
3 Ref. Ares(2020)5040731.
4 Official Journal L 345 of 29 December 2001, p. 94.
5 Ref. Ares(2020)4489005.
6 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/EC, OJ L 295, 21.11.2018, p. 39.
3
Article 4(3) second subparagraph of Regulation (EC) No 1049/2001 provides that
‘Access to a document containing opinions for internal use as part of deliberations and
preliminary consultations within the institution concerned shall be refused even after the
decision has been taken if disclosure of the document would seriously undermine the
institution's decision-making process, unless there is an overriding public interest in
disclosure’.
The documents to which access is refused contain internal opinions of European
Commission officials, their informal exchanges with counterparts and their views in
relation to the subject matters concerned, which were used as part of the internal
deliberations and consultations, but do not necessarily, reflect the official and final
position of the institution. Releasing these internal opinions is likely to bring a serious
harm to the decision-making process concerned, as it would deter staff members of the
European Commission from putting forward their views in an open and independent way
and without being unduly influenced by the prospect of disclosure.
Indeed, as the General Court has held, ‘the possibility of expressing views independently
within an institution helps to encourage internal discussions with a view to improving the
functioning of that institution and contributing to the smooth running of the decision-
making process’7.
Therefore, public release of these documents is likely to bring a serious harm to the
decision-making process by severely affecting the ability of the European Commission to
hold frank internal discussions. In addition, disclosure of these documents, which were
not designed for external communications purposes, might lead to misunderstandings
and/or misrepresentations regarding the EU position on different topics, such as the
adoption of children.
In light of the above, I consider that this risk is reasonably foreseeable and non-
hypothetical and that these documents should be protected in accordance with Article
4(3), second subparagraph, of Regulation (EC) No 1049/2001.
Partial Access
We have considered whether partial access could be granted to the documents requested
and currently withheld but this was deemed impossible as the sensitive elements are
integral to them. Please note that we cannot provide you with more detailed information
on these documents without disclosing their substance which is protected by the quoted
exception laid down in Article 4(3) of Regulation (EC) No 1049/2001.
Means of Redress
In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to
make a confirmatory application requesting the Commission to review its 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
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1)
7 Judgment of 15 September 2016,
Phillip Morris v Commission, T-18/15, EU:T:2016:487, paragraph
87.
4
BERL 7/076
B-1049 Bruxelles
or by email to: xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
[e-signed]
Maciej Popowski
Encl.:
The annex to the note dated 28 November 2002, “Romania –
progress in child protection”, registration no. D(2002) 95602;
The annex to the note for the file dated 18 September 2002,
“Children Romania / SERA / Mr. de Combret”, registration no.
D(2002) 95434;
The note for the file dated 20 May 2005, “Meeting concerning the
Romanian legislation on Children’s Rights and Adoption”,
registration no. D(2005)799.
5
Electronically signed on 07/10/2020 12:16 (UTC+02) in accordance with article 11 of Commission Decision C(2020) 4482