Ref. Ares(2021)4822888 - 28/07/2021
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR INTERNAL MARKET, INDUSTRY, ENTREPRENEURSHIP
AND SMES
The Director-General
Brussels
GROW.I.2/SP
Mr Peter Teffer
Ekko Voorkamer
Bemuurde Weerd WZ 3
3513 BH Utrecht
The Netherlands
Sent by email only to:
ask+request-9558-
xxxxxxxx@xxxxxxxx.xxx
Subject: Request for access to documents – GestDem No. 2021/3432 – Third reply
Dear Mr Teffer,
Referring to the letters of 16 July (first reply) and 22 July (first follow-up reply), in
which you were informed that you were receiving a partial reply to your access to
documents request GestDem No. 2021/3432, I would now like to provide you with a
second follow-up reply.
1.
NON-DISCLOSURE OF THE REQUESTED DOCUMENTS
With the first reply, six documents were disclosed out of the 26 documents identified.
With the first follow-up reply, a further 18 documents were disclosed. For the following
two documents, consultations with the Member States were still ongoing at the time the
first follow-up reply was sent:
Sender/
Title
of Type
of Date
of Reference
Entity
document
document document Number
concerned Addressee
Attachment(s)
ECJ Ruling -
letter to COM
for
guidance
ECJ ruling
European
from
e1
–
and
Commission, DG KBA, e2 –
Commission E-mail
04.03.2021 Ares(2021)4264687 Ireland
GROW, Director France, e3 –
review
Gwenole
Italy,
e4
–
request
Cozigou
RDW, e5 –
STA,
e9
–
Spain, e13 –
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: BREY 10/039 - Tel. direct line +32 229-61195
xxxx.xxxxxx@xx.xxxxxx.xx
SNCH, e24 –
NSAI
ECJ Ruling -
letter to COM
for
guidance
from
e1
-
KBA,
e2
-
FW:
ECJ
European
France, e3 -
ruling
and
Commission, DG Italy, e4 -
Commission E-mail
10.03.2021 Ares(2021)4264687 Ireland
GROW, Director RDW, e5 -
review
Gwenole
STA,
e8
-
request
Cozigou
Czech
Republic, e9 -
Spain, e13 -
SNCH, e24 -
NSAI
Consultations of Member States have now been completed. The documents were sent as
attachments to e-mails originating from one Member State, but the Commission has
consulted all the Member States that are signatories of the two letters.
Following an examination of the documents under the provisions of Regulation (EC) No
1049/2001 regarding public access to documents and taking into account the opinion of
the third parties, I regret to inform you that your application cannot be granted, as
disclosure is prevented by exception to the right of access laid down in Article 4(3),
second subparagraph of Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, according to which access
shall be refused if the "if disclosure of the document would seriously undermine the
institution's decision-making process".
One of the signatories of the documents has objected to disclosure of the documents and
has motivated their position as follows:
"
The documents concerned are letters sent by several Member State type-approval
authorities to the European Commission. They set out the position of Germany and the
other type-approval authorities involved in the follow-up to the judgment of the
European Court of Justice in Case C-693/18 and indicate that — in the opinion of the
authorities involved — divergences could exist with regard to the legal opinion of the
European Commission. The differing understanding of the scope of the testing carried
out by the Member State type-approval authorities and of the interpretation of Article 5
(2) of Regulation (EC) No 715/2007 should be highlighted. Since the legal opinion of the
European Commission has not yet been formally communicated, Germany takes the view
that the facts of the case are still undecided and open.
It is to be feared that prior publication of the points raised in the documents concerned
could lead to an attempt to influence the decision-making process of the competent
bodies of the European Commission. If such a situation were to occur, Germany regards
the protection of an unbiased and free exchange of views as potentially endangered in
order to ensure effective, functional and neutral decision-making on the substance. So
2
long as there is no conclusive opinion and position, which can be inferred from the
official statement of the European Commission which has not yet been made, we consider
that the conditions laid down in Article 4(3) of Regulation (EC) No 1049/2001 are met."
According to Regulation (EC) No 1049/2001, an exception to the right of access must be
waived if there is an overriding public interest in disclosing the document concerned,
which outweighs the interest protected by the exception to the right of access. In this case
the Commission has reached the conclusion that there appears to be no overriding public
interest in their disclosure in the sense of the Regulation.
The possibility of granting partial access in accordance with Article 4(6) of Regulation
(EC) No 1049/2001 has also been examined. However, this is not considered possible
since the documents in question are covered in their entirety by the above-mentioned
exception.
2.
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 addressed within 15 working days upon receipt
of this letter to the Secretariat-General of the Commission at the following address:
European Commission
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1)
BERL 7/076
B-1049 Bruxelles
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
(e-signed)
Kerstin Jorna
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Electronically signed on 28/07/2021 10:52 (UTC+02) in accordance with article 11 of Commission Decision C(2020) 4482
Document Outline