EUROPEAN COMMISSION
Brussels, 27.5.2019
C(2019) 4100 final
28017 Madrid
Spain
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 2019/1644 and 2019/1646
Dear
,
I refer to your emails of 5 and 11 April 2019, registered on 5 and 12 April 2019,
respectively, in which you submit a confirmatory applications 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).
On 14 March 2019, you submitted an initial application for access to documents under
Regulation (EC) No 1049/2001 to the Directorate-General for Economic and Financial
Affairs, in which you requested access to ʻa list of lobby meetings held by the commissioner
in charge of Economic and Financial Affairs, Pierre Moscovici, or any other Member of its
Cabinet with any organisations representing churches and/or religious communities since
2014 onwards, including all e-mails, minutes, reports or any other briefing papers related to
all those meetingsʼ. This application was registered under reference number GESTDEM
2019/1646.
Through your another initial application for access to documents under Regulation (EC) No
1049/2001 of 19 March 2019, addressed to the Directorate-General for Taxation and
Customs Union, you requested access to ʻa list of lobby meetings held by the commissioner
in charge of Taxation and Custom Union, Pierre Moscovici, or any other Member of its
Cabinet with any organisations representing churches and/or religious communities since
2014 onwards, including all e-mails, minutes, reports or any other briefing papers related 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. +32 229 91111
all those meetingsʼ. This application was registered under reference number GESTDEM
2019/1644.
In their initial replies dated 5 and 9 April 2019, both Directorates-General informed you
that:
neither Commissioner Moscovici nor any Member of his Cabinet had meetings with
lobbyists representing churches and/or religious communities since 2014 onwards;
they do not hold any documents falling within the scope of your requests.
In your confirmatory applications, you question the absence of any meetings and any
documents.
Against this background, the European Commission has carried out a renewed, thorough
search for meetings and documents that would fall within the scope of your confirmatory
applications as described above.
Following this renewed search, I confirm that:
neither Commissioner Moscovici nor any Member of his Cabinet had meetings with
lobbyists representing churches and/or religious communities since 2014 onwards;
the European Commission does not hold any documents that would correspond to the
description given in your applications.
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
European Commission) that there exists a presumption of lawfulness attached to the
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.
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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
conclusions.7
Given that the European Commission does not hold any documents corresponding to the
description given in your application, it is not in a position to fulfil your requests.
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.
Yours sincerely,
For the Commission
Martin SELMAYR
Secretary-General
5
Judgment of the General Court of 23 April 2018,
Verein Deutsche Sprache v European Commission,
T-468/16, EU:T:2018:207, paragraphs 35-36.
6
Ibid.
7
Order of the Court of Justice of 30 January 2019,
Verein Deutsche Sprache v Commission, C-440/18P,
here the EU:C reference is missing, can you pls add it? paragraph 14.
3