Council of the European Union
General Secretariat
Directorate-General Communication and Information - COMM
Directorate Information and Outreach
Information Services Unit / Transparency
Head of Unit
Brussels, 9 September 2021
Mr Stefan Soesanto
Email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Ref. 21/1378-rh-vl/ns
Request made on:
29.07.2021
Deadline extension: 19.08.2021
Dear Mr Soesanto,
Thank you for your request for access to documents of the Council of the European Union.1
Please find attached document
WK 5255/18.
You will also find attached partially accessible versions of documents
WK 8824/18 REV 1 and
WK
6758/18 REV 2.2 However, I regret to inform you that full access cannot be given for the reasons
set out below.
Document
WK 8824/18 REV 1 of 2 August 2018 is a working document from the Commission
services to delegations containing a
Non-paper to support the discussion in the Horizontal Working
Party on Cyber Issues. It concerns a sensitive issue which is still under discussions within the
Council.
In order to support the Council, in delivering on the resolution on encryption adopted by the
Council in December 2020, the European Commission is working together with the Member States
to identify technical, operational, and legal solutions to ensure lawful access to encrypted
information, while maintaining the effectiveness of encryption in protecting privacy and security of
communications.
1
The General Secretariat of the Council has examined your request on the basis of the applicable rules:
Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to
European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43) and the specific
provisions concerning public access to Council documents set out in Annex II to the Council's Rules of Procedure
(Council Decision No 2009/937/EU, OJ L 325, 11.12.2009, p. 35).
2
Article 4(6) of Regulation (EC) No 1049/2001.
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This process involves an analysis of existing capabilities and approaches for lawful and targeted
access to encrypted information in the context of investigations and prosecutions by the Member
States. Thus, having consulted with the originating source of the document, the General
Secretariat is of the opinion that the full disclosure of the document
WK 8824/18 REV 1 would
cause difficulties for Member States to participate in this ongoing process.
Full disclosure of the document at this stage would therefore seriously undermine the decision-
making process of the Council. As a consequence, the General Secretariat has to refuse full
access to this document.[1]
Document
WK 6758/18 REV 2 of 7 June 2018 is a working document from the General Secretariat
of the Council to delegations on
Draft Council Conclusions on EU Coordinated response to Large
Scale Cybersecurity Incidents and Crises - Comments from Member States (CZ, DE, ES, FR, LV,
LT, NL and SE). The document directly deals with the EU cybersecurity crisis management
framework to Large scale cybersecurity incidents and crisis.
Full release of the information contained in the document would jeopardise the public security by
revealing sensitive revisions reflecting national views, positions, ideas and comments of some
Member States at a particular period of time and a particular revision of the document.
Therefore, having consulted with the originating sources of the document, the General Secretariat
is of the opinion that full disclosure of the document would undermine the protection of the public
interest as regards public security. As a consequence, the General Secretariat has to refuse
access to this document.3
Having examined the context in which documents
WK 8824/18 REV 1 and
WK 6758/18 REV 2
were drafted, on balance the General Secretariat could not identify any evidence suggesting an
overriding public interest in their full disclosure.
I regret to inform you that access to documents
WK 2429/18, WK 2641/18, WK 7839/18,
WK 14758/18 and
WK 15391/18 cannot be given for the reasons set out below.
Document
WK 2429/18 of 27 February 2018 is a working document from the General Secretariat
of the Council to delegations containing
INTCEN presentation on NotPetya given at the Horizontal
Working Party on Cyber Issues meeting by the EU Intelligence and Situation Centre (INTCEN) -
Hybrid Fusion Cell.
Document
WK 2641/18 of 2 March 2018 is a working document from the European External Action
Service to the Horizontal Working Party on Cyber issues on
EU response to NotPetya malicious
cyber activity.
[1] Article 4(3), first subparagraph, of Regulation (EC) No 1049/2001.
3
Article 4(1)(a), first indent, of Regulation (EC) No 1049/2001.
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Document
WK 7839/18 of 27 June 2018 is a working document from the European External Action
Service to delegations containing a
Non-paper on 'Attribution in the context of the Framework for a
Joint EU Diplomatic Response to Malicious Cyber Activities ("cyber diplomacy toolbox").
We have carefully considered and examined whether public access can be granted in the
framework of Regulation 1049/2001 to the documents. We have come to the conclusion that public
access cannot be given to these documents pursuant to Article 4(1)(a), first indent, of the
Regulation 1049/2001 (protection of public security), Article 4(1)(a)(3) (protection of international
relations and pursuant to Article 4(3), second subparagraph, since disclosure would also seriously
undermine the decision making process of the Council.
Document
WK 2429/18 contains information based on classified contributions from EU Member
States intelligence and security services which indicates that the documents may contain
information and material a disclosure of which could harm the essential interests of the European
Union or of one or more of its Member States. Disclosure would risk endangering the sources and
methods through which the information was collected in the Member States. If even partially
released, it would lead to a serious breach of trust between the INTCEN and the contributing
Member States, which could result in Member States refusing to contribute to INTCEN
assessments. That would deprive the EU institutions of crucial information in this field which they
need in order to execute their policy. The discloser of this document would represent a risk to
INTCEN decision making process and international relations. It is vital to protect this information
and analysis, and any data that might indicate, even indirectly, how intelligence and security
services compile such information.
Document
WK 2641/18 provides options for an EU response in the context of the framework for a
joint EU diplomatic response to malicious cyber activities (“cyber diplomacy toolbox”) for
discussion among Member States on a specific case. The document provides an insight in the
options available, and includes an assessment of their possible impact. Disclosure of such details
would have harmful consequences. The disclosure of the options paper would expose the margin
of manoeuvre available when using the cyber diplomacy toolbox. If the options paper is released to
the public domain, adverse actors to the EU would be able to get familiar with the internal logic
behind the EU decision-making not only in this matter, but also in other areas where EU wishes to
use Common Foreign and Security Policy measures to respond to malicious behaviour. In
consequence, those adverse actors would adapt their activities in a way to minimise the
effectiveness and the impact of the envisaged EU action.
Document
WK 7839/18 provides a way how the EU could foresee to attribute malicious cyber
activities. As such, disclosure of these consideration could provide valuable information to adverse
actors about how the EU forms decisions on joint diplomatic responses and attribution of malicious
cyber activities. In consequence, those adverse actors could adapt their activity in order to hinder a
decision on attribution, which would in consequence lose its desired effect.
Document
WK 14758/18 and
WK 15391/18 are two working documents drawn up by the
Presidency containing a compilation of comments on the Cyber Diplomacy Toolbox as regards
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respectively a) options for a restrictive measures framework to respond to or deter cyber activities
that threaten the security or foreign policy interests of the Union or its Member States, and b) the
implementation of the Framework for a joint EU diplomatic response to malicious cyber activities.4
Having due regard to the outcome of our consultation with the services responsible for this policy
matter, the release of the information therein contained cannot be disclosed as it would cause
prejudice to public security and to the ongoing EU's strategic and diplomatic efforts in preventing,
detecting and organising effective responses to counter cyber-threats.
We have also looked into the possibility of releasing parts of documents
WK 2429/18,
WK 2641/18, WK 7839/18, WK 14758/18 and
WK 15391/18.5 However, as the exceptions to the
right of access applies to their entire content, the General Secretariat is unable to give partial
access at this stage.
Having examined the context in which these documents were drafted, on balance the General
Secretariat could not identify any evidence suggesting an overriding public interest in their
disclosure.
Pursuant to Article 7(2) of Regulation (EC) No 1049/2001, you may ask the Council to review this
decision within 15 working days of receiving this reply. Should you see the need for such a review,
you are invited to indicate the reasons thereof.6
Yours sincerely,
Fernando FLORINDO
Enclosures: 3.
4
See background information in
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02019D0797-
20201124&qid=1620137455138 and document 10474/17 (Council Conclusions on 19 June 2017, downloadable
from the public register of Council documents).
5
Article 4(6) of Regulation (EC) No 1049/2001.
6
Council documents on confirmatory applications are made available to the public. Pursuant to data protection
rules at EU level (Regulation (EU) No 2018/1725, if you make a confirmatory application your name will only
appear in related documents if you have given your explicit consent.
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