Dear DG Competition Access to Document Team,

under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents relating to any article 16, article 12B or article 40 (Staff Regulations) applications made by Daniel Coublucq when he left DG Comp to take up employment at Compass Lexecon in September 2018.

In particular, I request a note of all Daniel Coublucq's job titles at the Commission including dates held (incl. duration of his working contracts); copies of any application(s) that he made under article 12b, 16 and 40 to undertake the new professional activity; the date of issuing the authorisation; any assessments of the compatibility of his new role with his DG Comp role; and all documents (correspondence, emails, meeting notes etc) related to the authorisation of the new role.

In addition:

- I request all documents, correspondence and meeting notes (online and in person) concerned with Daniel Coublucq’s role in the Bayer/Monsanto merger, including the information about his participation in Unit E4 or presence in any Unit E4 meetings concerning the Bayer/Monsanto merger

- I request all documents, correspondence and meeting notes that describe Daniel Coublucq’s involvement in the Commission’s evaluation of BASF’s acquisition of Bayer seed treat and herbicide assets and its digital farming assets

- I request all documents, correspondence and meeting notes on opinions expressed by Daniel Coublucq in DG Comp, in Unit E4’s meetings or as an invited member, concerning the following document from Compass Lexecon: “Analysis of BASF’s incentives as regards to herbicides and herbicide tolerance traits” (13/3/2018),

- I also request the study by Compass Lexecon “Analysis of BASF’s incentives as regards to herbicides and herbicide tolerance traits (13/3/2018)”.

Finally, I would like to request all declarations of interest made by Daniel Coublucq when he
rejoined the Commission from Compass Lexecon in October 2020. I would like to receive all Commission documents including any emails, letters, minutes of meetings which discuss the risk of conflicts of interest in this case, and a note of any restrictions which were applied to Mr Coublucq when he rejoined the Commission.

I would appreciate receiving all the replies electronically via the asktheeu.org website.

Pursuant to Article 4(1)(b),(2) and (3) of Regulation 1049/2001, the exception to the right of
access contained in that Article must be waived if there is an overriding public interest in
disclosing the document requested.

As to the exception under Article 4(1)(b) Regulation 1049/2001:

As so far as the requested information constitutes personal data (e.g. Daniel Coublucq's job titles at the Commission, including dates held (incl. duration of his working contracts) and any Article 16, Article 12B or Article 40 (Staff Regulations) applications made by Mr Coublucq on his employment at Compass Lexecon in September 2018, the transmission of this personal data is necessary for a specific purpose in the public interest and there is no reason to assume that the legitimate interests of the data subject might be prejudiced. Therefore, as far as Article 9(1)(b) of Regulation 1725/2018 is applicable, the criteria for a legitimate transmission of personal data established therein are being met.

Necessity of the transfer of the personal data

In the present case, it is necessary to have the data transmitted for a specific purpose in the public interest.

The General Court has ruled that bringing to light possible conflicts of interest of members of parliament (MEPs) amounts to such a public interest (General Court, judgment of 15 July 2015, T-115/13, Gert-Jan Dennekamp v European Parliament, ECLI:EU:T:2015:497). The Court states that in the case of an elected representative, a conflict of interest presupposes, that, when voting on a given subject, that representative’s behaviour may be influenced by his private interest (General Court, judgment of 15 July 2015, T-115/13, Gert-Jan Dennekamp v European Parliament, ECLI:EU:T:2015:497, para. 93). The Court concludes that in order to identify such conflict of interests, the names and the voting behaviour of the MEPs must be disclosed, therefore a transfer of such data is the only measure by which the applicant’s aim can be attained, no other measure being capable of ensuring that MEPs facing a potential conflict of interest are identified (General Court, judgment of 15 July 2015, T-115/13, Gert-Jan Dennekamp v European Parliament, ECLI:EU:T:2015:497, para 94)

The Court adds that the concept of a conflict of interest does not relate only to a situation in which an MEP has a private interest which has actually influenced the impartial and objective performance of his official duties but also to a situation in which the interest identified may, in the eyes of the public, appear to influence the impartial and objective performance of his official duties. Furthermore, the disclosure of potential conflicts of interest is not aimed only at revealing those cases in which the public official has performed his duties with the intention of satisfying his private interests, but also at informing the public of the risks of public officials being subject to conflicts of interest, so that they act impartially in the performance of their official duties, after, in view of the circumstances in which they find themselves, having declared the potential conflict of interest to which they are subject and taken or proposed measures to resolve or avoid that conflict (General Court, judgment of 15 July 2015, T-115/13, Gert-Jan Dennekamp v European Parliament, ECLI:EU:T:2015:497, para 106).

In light of that case-law the transmission of the requested information is necessary for the applicant’s interest that is to investigate a potential conflict of interest concerning Mr. Daniel Coublucq and his involvement in the Bayer/Monsanto merger proceedings and in particular in the Commission’s evaluation of BASF acquisition of Bayer seed treat and herbicide assets and its digital farming assets. The European Commission has approved under the EU Merger Regulation the acquisition of Monsanto by Bayer in March 2018. Mr. Coublucq, who was a member of DG Competition at that time, left the Commission afterwards and joind Compass Lexecon in September 2018. Compass Lxecon is one of the world's leading economic consulting firms representing industry interests. In 2020, he rejoined the Commission.

During the merger proceedings Compass Lexecon submitted a study conducted by BASF (see Decision of implementation of the commitments – Purchaser approval (M.8084)). The study played an important role for the decision of the merger. It was only submitted 8 days before the final decision was announced, but the decision followed very much along its lines: On 29th of May 2018, the Commission published the “Decision of implementation of the commitments – Purchaser approval (M.8084) and explicitly referred to BASF's submission “Analysis of BASF”, prepared by Compass Lexecon. It is one of the few documents mentioned. It led to the acquisition by BASF of Bayer's businesses of Seed Treatment and some herbicides, as well as Bayer's digital agriculture business worldwide. On the 1st of August 2018 BASF spent €7.6b in the acquisition of these assets (https://www.basf.com/global/en/media/new...).

Also Mr. Coublucq played an important role in the merger proceedings as he was a member of the Chief Economist Team. His importance becomes particularly apparent as the relevant Commission members explicitly expressed their gratitude for Mr. Coublucq’s contribution (“The authors would like to thank Daniel Coublucq, who contributed significantly to this case, in particular the patent analysis” (see Competition Merger Brief, Issue 2/2018 December, DG Competition, page 6, M8084 Bayer/Monsanto doi 10.2763/512788).

As both the study of BASF and the contribution of Mr. Coublucq played a major role in the decision adopted by the Commission, and the study was submitted by Compass Lexecon, which Mr. Coublucq joined as an employee only shortly after, there is sufficient reason to suspect that private interest has actually influenced the impartial and objective performance of Mr. Coublucq official duties. At the very least, the present case amounts to a situation in which the interest identified may, in the eyes of the public, appear to influence the impartial and objective performance of official duties.

The requested documents are necessary to thoroughly evaluate this potential conflict of interest. As in the case-law cited above, there is no other measure capable of ensuring that this potential conflict of interest is being investigated. Investigating this potential conflict of interest also lies in the public interest. The revolving door problem at EU institutions, i.e. public officials joining the public sector after termination of their public mandate, and the potential conflicts of interests arising from it as well as the negative impact on the legitimacy of EU institutions have been well documented (instead of many, see here: https://verfassungsblog.de/the-eu-and-it...). Especially with regards to the Commission, the risks of negative impacts by revolving door moves is high, as also pointed out by the EU Ombudsman, who concluded in her decision that a more robust approach to the issue of ‘revolving doors’ when dealing with cases involving senior Commission officials is needed (https://www.ombudsman.europa.eu/en/decis...).

If revolving door moves include a senior Commission official changing to a big economic consultancy firm, the risks for conflict of interests, the disclosure of confidential information and inappropriate lobbying is particular high, as the aggressive approach of economic consultancy firms towards the Commission and especially towards DG Competition has been well documented (https://www.lobbycontrol.de/macht-der-di...).

No reason to assume that the data subject’s legitimate interests might be prejudiced

If the transmission of the personal data is demonstrated to be necessary, it is then for the institution concerned to determine that there is no reason to assume that that transfer might prejudice the legitimate interests of the data subject. If there is no such reason, the transfer requested must be made, whereas, if there is such a reason, the institution concerned must weigh the various competing interests in order to decide on the request for access (European Court of Justice, judgment of 15 July 2015, C-615/13 P, ClientEarth and PAN Europe v EFSA, paragraph 47; General Court, judgment of 15 July 2015, T-115/13, Gert-Jan Dennekamp v European Parliament, ECLI:EU:T:2015:497, paragraph 116 citing further case-law).

It is therefore upon the Commission to evaluate whether such reason exists and if that is the case, illustrate the balancing of interests that must be conducted. In that regard, it must be stressed that in weighing up the interests engaged, the legitimate interests of Mr. Daniel Coublucq, which fall into the public sphere, must be subject to a lesser degree of protection than that which would be enjoyed by the interests falling into their private sphere (General Court, judgment of 15 July 2015, Gert-Jan Dennekamp v European Parliament, CLI:EU:T:2015:497, paragraph 124). The information relating to Mr. Coublucq revolving door move cannot be deemed to be of purely private nature.

This is the case as increased transparency has been seen as a necessary tool to minimize the main risks associated with the revolving door problem both by the EU Ombudsman and the Commission (https://www.ombudsman.europa.eu/en/decis...). However, the Ombudsman also concludes that only publishing annual reports, as it is the current practice of the EU Commission, that include only cases where the one-year ban on lobbying and advocacy was imposed, and not on all cases assessed is insufficient. The EU Ombudsman stresses that there are significant shortcomings in how the Commission makes public information about its assessments of post-service activity requests by former staff members (para. 52, https://www.ombudsman.europa.eu/en/decis...). In light of the aforementioned case-law and the essential role transparency plays in the revolving door problem, which is recognized by the EU institutions, one can hardly uphold that it can constitute a legitimate interest to withhold information that would give clarity as to whether the revolving door problems have materialized in this case.

In the alternative: It is proportionate to transmit the personal data for that specific purpose

If such a reason to assume that the data subject’s legitimate interests might be prejudiced, it would nevertheless be proportionate to transmit the personal data for the specific purpose of the disclosure.

In the case-law of the General Court, bringing to light potential conflicts of interest of MEPs or public officials renders the transmission of personal data proportionate. The General Court stressed that the transmission of such data ensures better scrutiny of – in that case – MEPs and of the functioning of an EU institution which represents the peoples of the Member States, and improves the transparency of its actions (General Court, judgment of 15 July 2015, Gert-Jan Dennekamp v European Parliament, CLI:EU:T:2015:497, paragraph 126). It concludes that in view of the importance of the interests, which are intended to ensure the proper functioning of the European Union by increasing the confidence that citizens may legitimately place in the institutions, it must be held that the legitimate interests of such MEPs cannot be prejudiced by the transfer of the personal data at issue. The same must be valid for Members of the Commission and commission officials.

As to the exception under Article 4 (2) and (3) of Regulation 1049/2001:

The Court of Justice held that for the purposes of interpretation of the exceptions in Article 4(2), first and third indent of Regulation 1049/2001, there is a general presumption that disclosure of documents exchanged between the Commission and notifying and other (third) parties in merger procedures in principle undermines the protection of the commercial interests of the undertakings involved and also the protection of the purpose of investigations related to the merger control proceedings. However, the requested documents are not covered by this assumption.

Not all documents requested fall under this presumption of confidentiality

First, not all documents requested fall under this presumption of confidentiality as not all documents requested have been exchanged between the Commission and notifying and other (third) parties in merger procedures. The Court of Justice has recognised that the existence of such a presumption does not exclude the right of the person concerned to demonstrate that a document whose disclosure has been requested is not covered by that presumption (ECJ, judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 103) and the recognition and application of a general presumption of confidentiality must be considered strictly (see, to that effect, judgment of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 81).

In the present case, not all the documents at issue relate to an ongoing merger control proceeding. Especially, all the information relating to the revolving door problem, cannot be deemed as part of the merger control proceeding. Further, the merger control proceeding has been closed in 2018.

An overriding public interest in disclosure can be demonstrated

Second, an overriding public interest in disclosure can be demonstrated. For an overriding public interest in disclosure to exist, this interest, firstly, has to be public (as opposed to private interests of the applicant) and, secondly, overriding, i.e. in this case it must outweigh the interests protected under Article 4(2), first and third indent, and 4(3) of Regulation 1049/2001.

While assessing the opposing interests at stake and as far as information requested relates to emissions into the environment, the Aarhus Convention must also be complied with. Article 4(4) of the Aarhus Convention makes it clear that the grounds for refusal “shall be interpreted in a restrictive way, taking into account the public interest served by disclosure.” This balancing exercise of the interests at play must be conducted on the basis of a concrete examination of the environmental information in question (Aarhus Convention Compliance Committee’s findings in Communication ACCC/C/2007/21, see paragraph 30(c).)

The information requested relate largely to emission into the environment. The merger of Bayer/Monsanto adds to an increased monopolization within the agricultural industry. This has severe consequences for agriculture and the environment. A study shows that because of several mergers within the agricultural industry between 2015 and 2020, those merged companied hold over 60 per cent of the global seed market and around 70 per cent of the pesticide market (https://www.aktion-agrar.de/wp-content/u...). Such monopolization increases the risks of minimizing the diversity of seeds and the use of pesticides.

As far as the General Court requires the applicant to demonstrate specific circumstances justifying the disclosure of the documents concerned, this can be established in the present case (General Court, judgment of 1 February 2023, ClientEarth v Commission, Case T‑354/21, ECLI:EU:T:2023:34, paragraph 92, pending under C-249/23 P).

The specific circumstances that militate for a disclosure of the requested information stem both from the environmental impact of the decision to approve the merger of Bayer/Monsanto as well as the facts surrounding the revolving door moves of Mr. Coublucq, which severely call into question that Mr. Coublucq based his contribution to the merger decision solely on offical interests.

Further, the General Court has recognized an overriding public interest rebutting the presumption of confidentiality in a case, in which a study containing scientific evidence was requested (General Court, judgment of 5 February 2018, Case T-235/15, Pari Pharma GmbH v. European Medicines Agency, ECLI:EU:T:2018:65, paragraphs 143-144). Much of the information pertaining to the merger file is likely to be a of a similar nature, such as the study of Compass Lexecon “Analysis of BASF’s incentives as regards to herbicides and herbicide tolerance traits (13/3/2018)”.

Dear Competition,

sorry, I only see this now! My postal address is:
Nina Katzemich
LobbyControl e.V.
Am Justizzentrum 7
50939 Köln
Germany

Yours faithfully,

Nina Katzemich