Doc.1 Fiche 5 Access documents from third parties full.pdf.pdf

Ref. Ares(2021)49539 - 04/01/2021

Fiche 5            Access to documents from third parties
- Updated -

Main issues:

  All documents in the Commission's possession - including documents from third parties - fall within the scope of
Regulation 1049/2001. If access to them is requested, the possibility of granting full or partial access needs to
be assessed.

  Unless  it  is  clear  that  the  document(s)  shall  or  shall  not  be  disclosed,  the  third-party  originator  must  be
consulted regarding the possibility to grant partial or full access to the document(s) requested.

  If the originator of the document objects to the disclosure on the basis of the exceptions provided for in Article
4 of Regulation 1049/2001, the DG/service should confirm the refusal and not overrule the third party at the
initial level, as explained below.

  The third-party originator is to be understood as the entity or individual who submitted the documents to the
Commission.

Current administrative practice:

How to assess documents originating from third parties under Regulation 1049/2001?

The course of action to follow depends on the content of the documents. No consultation is necessary in the following
three cases:

-
If access to the content of the documents originating from third parties manifestly does not affect one of the
protected  interests  under  the  exceptions  provided  for  in  Article  4  of  Regulation  1049/2001.  Correspondence
(letters,  e-mails)  from  third  parties  can  normally  be  made  public,  unless  specific  commercially  sensitive
elements,  personal  data  of non-senior  staff  or  other  sensitive  elements  warrant  protection  under  one  of  the
exceptions of Article 4, and without prejudice to the need to consult in case of doubt;

-
If  the  documents,  or  parts  thereof,  are  clearly  covered  by  one  or  several  exceptions  (such  as  commercially
sensitive data appearing in the documents, or certain types of personal data1, which are redacted by default2);

-
If the third-party documents are covered by a general presumption of non-disclosure, recognised by the case-
law of the ECJ (for more information see the case-law table available on the access-to-documents webpages on
My Intracomm).

In all other cases, the third-party originator must be consulted (Article 4 of the Regulation; Article 5 of the internal rules).
Consultations of third parties should enable the latter to explain their position with reference to the exceptions set out
in Article 4 of Regulation 1049/2001.

The opinion of the third-party originator on the possible sensitivity of the documents in light of the exceptions of Article
4  of  Regulation  1049/2001  also  covers  those  annexes  or  data  that  had  been  authored  and  transmitted  to  it  by  yet
another third party (the ‘third-party author’). In the latter case, it might decide to consult the third-party author of those
documents  or data  before  submitting  its  position  to  the  Commission.  It  is  not  for  the  Commission  services  to  consult
directly the ‘third party author’.

When  dealing  with  the  request  at  the  initial  level,  the  DGs/services  should  not  grant  access  to  the  documents
concerned,  or  parts  thereof,  in  cases  where  the  originator  objects  to  disclosure  and  justifies  the  objection  with
reference  to  the  exceptions  provided  for  in  Regulation  1049/2001.  Where  no  such  justification  is  given,  the  service
concerned should insist that the third-party author provides one.

In  the  initial  reply,  the  full  or  partial  refusal  to  give  access  must  be  justified  by  the  application  of  one  or  several
exceptions provided for by paragraphs 1 to 23 of Article 4 of Regulation 1049/2001. Reference can be made both to the

1 In particular, names of non-senior staff, biometric data such as signatures, and contact details of individuals.
2 Please see our separate guidance fiche the personal data of third parties.

exceptions invoked by the third party and/or to other exceptions if these are considered applicable. The fact that a third
party objected is not in itself an exception that can be invoked, as the refusal should always be argued on the basis of
exceptions laid down in Article 4 of Regulation 1049/2001.

The decision whether the document is disclosed remains with the Commission. The Commission's current administrative
practice  is  that  the  need  for  overruling  of  the  originator’s  explicit  objections  to  disclosure  is  assessed  at  the
confirmatory level, by the SG.

In case of Member State opposition, a reference should be made both to Articles 4(4) and 4(5) and to the prima facie
assessment4 of the exceptions invoked by the Member State.

If the third party does not respond5, the Commission must still assess the document to determine whether it falls under
any exceptions, while taking into account the third party's interests.

How to assess Commission documents reproducing the position of a third party?

Art. 4(4) concerns consultation of third parties regarding disclosure of documents originating from them. In principle, we
do  not  consult  third  parties  on  disclosure  of  the  Commission's  own  documents.  However,  insofar  as  Commission
documents quote or reflect the content of third-party documents, the general Commission's administrative practice is to
consult the third parties on the possible disclosure of their relevant parts. The decision whether or not to consult a third
party  on  the  relevant  section  of  the  Commission  documents  is  taken  on  a  case-by-case  basis,  depending  on  the
sensitivity  of  the  content  and  the  possible  harm  in  disclosure,  in  light  of  the  interests  protected  under  Regulation
1049/2001.

For example, the Commission does not necessarily have to consult third parties on the possible disclosure of minutes of
meetings held with third parties (drafted by Commission services unilaterally and for internal use), unless the views of
the third parties reflected therein are particularly sensitive.

In  case  of  documents  reflecting  Member  States'  positions,  it  is  however  recommended  to  consult  the  respective
Member States, in accordance with the principle of loyal cooperation. If the positions were expressed in the framework
of  meetings  of  the  Council  or  its  preparatory  bodies,  it  is  the  Council,  rather  than  the  Member  States,  to  whom  the
consultation should be addressed.

Case-law:

-
Court of Justice, 18 December 2007, case C-64/05, Sweden v Commission
-
Court of first Instance, 30 January 2008, case T-380/04, Terezakis v Commission
-
General Court, 13 September 2013, case T-380/08, Netherlands v Commission
-
General Court, 25 September 2014, case T-669/11, Spirlea v Commission
-
General Court, 21 October 2010, case T-439/08, Agapiou Joséphidès v Commission and EACEA
-
General Court, 3 May 2018, case T-653/16, Malta v Commission

Reference documents/links:

  Standard  letters  for  consultation  of  third  parties,  as  well  as  examples  of  confirmatory  decisions  and  the
summary  of  the  case-law  are  available  on  the  Commission's  access-to-documents  webpages  on  My
Intracomm6;

  The full text of judgments of the EU Courts can be consulted on the website of the ECJ: www.curia.eu

Updated August 2018

3 In case the third party is a Member State, the latter can also invoke Article 4(3). Please see in this respect Case C-64/05,
Sweden v Commission, paragraph 76.
4 The Commission checks whether the explanations put forward are manifestly wrong.
5 And the Commission service concerned clearly indicated that, in the absence of a reply within the set deadline, it would decide.
6 https://myintracomm.ec.europa.eu/sg/docinter/Pages/tools.aspx;