Ref. Ares(2020)6961107 - 20/11/2020
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR HEALTH AND FOOD SAFETY
Director-General
Brussels,
SANTE.F2 PC/jh
By registered letter with
acknowledgment of receipt 1
Mr Kunal Solanky
42 Wykeham Crescent
OX4 3SB
Advance copy by email to:
ask+request-5850-
xxxxxxxx@xxxxxxxx.xxx
Dear Mr Solanky,
Subject: Your application for access to documents – Ref GestDem No 2020/5853
We refer to your e-mail dated 1 October 2020, registered on 5 October 2020 under the
above mentioned reference number, in which you request access to documents.
We also refer to our letter of 26 October 2020 (Ref. Ares (2020)5914922) extending the
time limit to respond to your request according to Article 7(3) of Regulation (EC) No
1049/2001.
1) Scope of your request
In your email, you request, on the basis of Regulation (EC) No 1049/2001 2, access to:
“
the most recent report from each Member State” on the
“depopulation operations
carried out during the previous year” (hereafter “depopulation report”) and submitted to
the Commission according to Article 18(4) of Council Regulation (EC) No 1099/2009 on
the protection of animals at the time of killing 3.
1 Although the reply is usually also sent to you by registered post, please note that due to the extraordinary health and
security measures currently in force during to the COVID-19 epidemics, which include the requirement for all
Commission non-critical staff to telework, we are unfortunately not in a position to follow normal practice until
further notice. We would therefore appreciate if you could confirm receipt of the present e-mail.
2 Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission
documents (OJ L 145, 31.5.2001, p. 43).
3 Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing
(OJ L 303, 18.11.2009, p. 1–30)
Commission Européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11.
We consider that your request is to cover documents held up to the date of your initial
application, i.e. 1 October 2020.
2) Identification and assessment of the concerned documents
We have identified 19 documents falling under the scope of your request. A table with
the list of the identified documents and summarising the outcome of the assessment
carried out on their content on the basis of Regulation (EC) No 1049/2001 is attached.
Since these 19 documents originate from a third party, the originators have been
consulted in order to assess whether an exception applies to these documents, in
accordance with Article 4(4) of Regulation (EC) No 1049/2001.
Having examined all the documents under the provisions of Regulation (EC) No
1049/2001 and considered the opinion of the third party, we have come to the following
conclusion, which is further explained below:
Partial access can be granted to the 19 documents as their full disclosure is
prevented by one/several exception/s to the right of access laid down in Article 4
of the Regulation.
You may reuse the documents requested free of charge for non-commercial and
commercial purposes provided that the source is acknowledged and that you do not
distort the original meaning or message of the documents. Please note that the
Commission does not assume liability stemming from the reuse.
Documents originating from third parties cannot be re-used without the agreement of the
originators, who hold a copyright on it. They do not reflect the position of the
Commission and cannot be quoted as such.
We enclose a copy of the documents No 1 to 19 which have been redacted of the parts
which cannot be disclosed as further explained below.
3) Partial disclosure of documents
a) Protection of the privacy and integrity of the individual, in particular in accordance with
Community legislation regarding the protection of personal data - Article 4(1)(b) of
Regulation (EC) No 1049/2001
With regard to the documents 1 to 19, a complete disclosure of the identified 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, because they
contain the following personal data: the names/initials and contact details of natural
persons.
When access is requested to documents containing personal data, 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
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institutions, bodies, offices and agencies and on the free movement of such data 4
becomes fully applicable 5. Article 9(1)(b) of this Regulation 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 subject might be prejudiced. In
your request, you do not express any particular interest to have access to these personal
data nor do you put forward any argument to establish the necessity to have the data
transmitted for a specific purpose in the public interest.
Consequently, we 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. In addition, 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.
Please note that documents originating from third parties are disclosed to you based on
Regulation (EC) No 1049/2001. However, this disclosure is without prejudice to the rules
on intellectual property, which may limit your right to reproduce or exploit the released
documents without the agreement of the originator, who may hold an intellectual property
right to them. The European Commission does not assume any responsibility from their
reuse.
In accordance with the above mentioned, partial access is granted to documents No 1 to
19, expunged of personal data.
b) Protection of commercial interests of a natural or legal person - Article 4(2), first indent,
of Regulation (EC) No 1049/2001
Documents No 2, 10, 16 and 17 also contain information whose disclosure may
undermine the commercial interest of a legal person, and they may include industrial
information and information covered by intellectual property.
Since these documents originate from Member States, the latter have been consulted, in
accordance with Article 4(4) of Regulation (EC) No 1049/2001, in order to assess
whether an exception under Article 4 of this Regulation is applicable.
Hungary and Romania have objected to the disclosure of some parts of these documents
invoking the argument that putting in public domain some business sensitive information
contained therein would lead directly to the identification of livestock farms and would
affect their competitive position on the market. Disclosure of these parts would
undermine the protection of the commercial interests of livestock farmers.
4 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.
5 Judgment of the Court of Justice of the EU of 29 June 2010 in case C-28/08 P, Commission/The Bavarian Lager
Co. Ltd, ECR 2010 I-06055.
3
Therefore, having considered the opinion of Hungary and Romania we have come to the
conclusion that the depopulation reports submitted by Hungary (document No 10) and
Romania (document No 16) may only be partially disclosed.
Document No 2 (the depopulation report from the Czech Republic) and No 17 (the
depopulation report from Sweden) also contain information that would lead to the
identification of farms and therefore these documents can only be partially disclosed, for
the reasons provided above.
The parts of these documents (Nos 2, 10, 16 and 17) that would lead directly to the
identification of livestock farms have been redacted as their disclosure is prevented by the
exception to the right of access laid down in Article 4(2), first indent of Regulation (EC)
No 1049/2001.
In accordance with the above, partial access is granted to the documents Nos 2, No 10, 16
and 17, expunged of identification of livestock farms.
4) No documents held
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.
Given that no reports originating from nine Member States (Belgium, Bulgaria, Cyprus,
France, Lithuania, Luxembourg, Malta, Poland, Slovenia) are held by the Commission,
the Commission is not in a position to fulfil your request in this respect.
5) Overriding public interest
The exceptions to the right of access provided for in the first indent of Article 4(2) of
Regulation (EC) No 1049/2001 must be waived if there is an overriding public interest in
disclosing the requested document. In your application, you did not submit any grounds
concerning a public interest on the basis of which the interests protected in Regulation
(EC) No 1049/2001 would have to be overridden, neither could we identify any such
ground. In these circumstances, we have to conclude that there is no evidence of an
overriding public interest in disclosure, in the sense of Regulation (EC) No 1049/2001.
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5. 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 this position.
Such a confirmatory application should be submitted within 15 working days upon
receipt of this letter to the Secretary-General of the Commission at the following address:
European Commission
Secretary-General
Transparency unit SG-B-4
BERL 5/282
B-1049 Bruxelles
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
Sandra Gallina
Director General
Annexes:
List of identified documents;
19 partially disclosed depopulation reports.
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Electronically signed on 19/11/2020 20:30 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482
Document Outline