Recording of DG Sante input follow up of the ECJ ruling to food stakeholders

Esperando una revisión interna por parte de Salud y Seguridad Alimentaria de cómo han respondido a esta solicitud.

Dear Health and Food Safety,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:

The recording of agenda item 7. Short information on points raised by stakeholders: What is next after CJEU ruling on mutagenesis? during the Plenary meeting of Advisory Group - Food Chain and Animal and Plant Health on 26 November 2018.
Please note that I am solely interested in the Commission’s interventions and not in the contributions from other stakeholders present at the meeting.

Yours faithfully,

Mute Schimpf
Friends of the Earth Europe

Salud y Seguridad Alimentaria

1 Adjuntos

Dear Ms Shimpf,

Thank you for your request for access to documents.

Unfortunately you have not indicated your postal address that is required
for registering and handling your request in line with the procedural
requirements. Please send us your full postal address at your earliest
convenience. Pending your reply, we reserve the right to refuse the
registration of your request.

You may, of course, use directly the electronic form for entering your
request:

[1]http://ec.europa.eu/transparency/regdoc/...

 

Best regards,

 

SANTE ACCESS TO DOCUMENTS

[2]cid:image001.gif@01D3FF48.374A49E0
European Commission
Health and Food Safety

 

 

 

 

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Dear Health and Food Safety,

here is my postal adrress
Friends of the Earth Europe
Rue d'Edimbourg 26
1050 Brussels

Yours faithfully,

Mute Schimpf

Salud y Seguridad Alimentaria

1 Adjuntos

Dear Ms Schimpf,

 

Thank you for your e-mail dated 22 May 2019.  We hereby acknowledge
receipt of your application for access to documents, which was registered
on 22 May 2019 under reference number GestDem 2019/3008.

 

In accordance with Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, your application
will be handled within 15 working days. The time limit will expire on 17
June  2019. In case this time limit needs to be extended, you will be
informed in due course.

 

You have lodged your application via the AsktheEU.org website. Please note
that this is a private third-party website which has no link with any
institution of the European Union. Therefore, the European Commission
cannot be held accountable for any technical issues or problems linked to
the use of this system.

 

Please note that the private third party running the AsktheEU.org website
is responsible and accountable for the processing of your personal data
via that website, and not the European Commission. For further information
on your rights, please refer to the third party’s privacy policy.

 

We understand that the third party running that website usually publishes
the content of applicants’ correspondence with the European Commission on
that website. This includes the personal data that you may have
communicated to the European Commission (e.g. your private postal
address).

 

Similarly, the third party publishes on that website any reply that the
Commission will send to the email address of the applicants generated by
the AsktheEU.org website.

 

If you do not wish your correspondence with the European Commission to be
published on the AsktheEU.org website, you can provide us with an
alternative, private e-mail address for further correspondence. In that
case, the European Commission will send all future electronic
correspondence addressed to you only to that private address.

 

 

Yours faithfully,

SANTE ACCESS TO DOCUMENTS

[1]cid:image001.gif@01D3FF48.374A49E0
European Commission
Health and Food Safety

References

Visible links

Salud y Seguridad Alimentaria

1 Adjuntos

Dear Ms Schimpf,

               

We refer to your request dated 22 May 2019 in which you make a request for
access to documents, registered on the same date under the above mentioned
reference number.

Your application is currently being handled. However, we will not be in a
position to complete the handling of your application within the time
limit of 15 working days, which expires on 17 June 2019.

An extended time limit is an internal consultation needs to be carried
out.  

 

Therefore, we have to extend the time limit with 15 working days in
accordance with Article 7(3) of Regulation (EC) No 1049/2001 regarding
public access to documents. The new time limit expires on 8 July 2019.

We apologise for this delay and for any inconvenience this may cause.

 

Yours faithfully,

 

SANTE ACCESS TO DOCUMENTS

[1]cid:image001.gif@01D3FF48.374A49E0
European Commission
Health and Food Safety

References

Visible links

Dear Health and Food Safety,

Due to the fact that my request is very narrow and I ask for only one document, the delay is not proportionate.

Yours faithfully,

Mute Schimpf

Salud y Seguridad Alimentaria

1 Adjuntos

Dear Ms Schimpf,

 

Please find herewith the reply to your access to documents request with
reference number 2019/3008. The original has been sent by registered post.

 

Kind regards,

SANTE Advisory Group

Dear Health and Food Safety,

Please pass this on to the person who reviews confirmatory applications.

I am filing the following confirmatory application with regards to my access to documents request 'Recording of DG Sante input follow up of the ECJ ruling to food stakeholders'.

1. Failure to treat this as a stakeholder request

I work for Friends of the Earth Europe who has been a member of the DG Sante advisory group on the Food Chain and Animal and Plant Health for many years.

A FoEE representative attended the plenary meeting of this advisory group on 26 November 2018, whereby the head of the biotech unit in DG Sante gave an update about the consequences of a ruling of European Court of Justice under agenda item 7 (https://ec.europa.eu/food/sites/food/fil...). The ruling clarified that a newer generation of genetically modified crops fall under the scope of the relevant EU GMO legislation (Directive 2001/18, Regulations 1829, 1830/2003).

On 29 April 2019 the final minutes were sent to all stakeholders. This did not comply with the rules of procedure Art 7 for the advisory group (https://ec.europa.eu/food/sites/food/fil... ), which requests that stakeholders receive draft minutes for comments. Thus, FoEE contacted DG Sante and reminded them of the rules that stakeholders have a right to comment on draft minutes. On 29 April 2019 FoEE wrote emails to the director of DG Sante, as well as staff responsible for the advisory group, requesting the recording of this session of the plenary meeting.

In a reaction to this, the responsible person from DG Sante changed the minutes about the contribution made from FoEE, but did not change the minutes on the presentation made by the DG Sante official. On 17 May 2019, FoEE repeated its request as a stakeholder to receive the recording of this session. There was no response to my request from DG Sante without any reasoning why an official stakeholder of the advisory group cannot get access to the recording of this session from the plenary meeting. Instead DG Sante responded that the email exchange would be treated as an access to document request (21 May 2019). Thus, it was a decision of DG Sante to turn the direct communication about the content of the advisory meeting into an access to document request.

FoEE therefore filed an official access to document request on 22 May 2019 (https://www.asktheeu.org/en/request/reco... ). After taking six weeks to respond, DG Sante rejected our request completely on 5 July 2019. We do not agree with this reasoning and reject the arguments.

DG Sante argued that the disclosure of the recording would conflict with the protection of personal data of the EU commission as defined under Regulation 2018/1725.

EU Commission’s expert and advisory groups fall under the scope of regulation of regulation 1049/2001. (http://ec.europa.eu/transparency/regexpe... )

First, the rejection of the disclosure conflicts with the rights and definition of Regulation 1049/2001. The definition of documents explicitly includes sounds and audio visual recordings such as the one requested. Indeed, the Regulation states that: (a) ‘document’ shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audio visual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility.

Thus, the conclusion of DG Sante to define recordings as personal information to be protected and to reject the disclosure on that basis is not proportionate as it would exclude all recordings from access to document requests. By doing so, the Commission seems to be applying a blanket exception to access, which we believe is against the public interest and the spirit of Regulation 1049/2001. To this extent, we recall that Article 1(a) of the Regulation establishes that its purpose is “to ensure widest possible access to documents”. The Commission’s attempt to exclude from the scope of the law a whole category of EU documents directly contravenes this article.

It is also worth recalling that the Court of Justice has found that there is no general presumption of non-disclosure regarding documents as long as they do not belong to a file related to an ongoing administrative or judicial proceeding. In this sense, beyond this specific access to document request, the question arises of the conflict of interest between the public interest to access recordings and the protection of personal data for Commission officials. A sustainable solution must be found to this conflict.

Second, it is worth stating that Art 4 (d) of regulation 2018/1725 underlines that the processing of personal data must be seen in the context of purposes for which they are processed.
‘Art 4 d, Personal data shall be:
accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes or which they are processed,’
The recordings of advisory and expert groups have the purpose to be used for supporting the minutes taking. Thus, if members of an advisory group raise critical points about the minutes of the meetings, the recordings have the purpose to clarify the minutes and help make a decision.

2. Failure to consider an overriding public interest:

The decision of the European Court of Justice on the regulation of a new generation of GMOs (Case C-528/16) has wide impacts on the EU’s GMO policy as well as public and environmental safety.

The ruling clarified that a new generation of GMOs are under the scope of the EU GMO legislations and are defined as GMOs. It highlighted that the requirements of GMOs also apply to the new GMOs. This means before they can be marketed or grown in the EU, safety checks and an authorisation procedure must be followed as well as traceability rules for the breeding and food processing sector (Directive 201/18, Regulation 1829/2003 and Regulation 1830/2003). It concluded that new GMOs might cause similar environmental and health risks than older generation GMOs. And the ruling was explicit that excluding new GMOs from the Directive 2001/18 ‘would compromise its objective to avoid adverse effects on human health and the environment, and would fail to respect the precautionary principle which that directive seeks to implement.’ (https://curia.europa.eu/jcms/upload/docs... )

How the ruling is implemented affects many EU policies and has relevance for various articles in the Treaty from consumers rights to take well-informed decisions, the implementation of the precautionary principle, and food and environmental safety impacts. (See Articles 4(2)(f), 12, 114, 169 and 191 of the Treaty on the Functioning of the European Union (TFEU))

At the advisory group meeting, the EU Commission presented for the first time to stakeholders the next steps on how to implement the ruling. The details of the presentation from DG Sante are therefore of overriding interest for the public.

To this extent, and once a greater public interest in disclosure has been clearly established, we question the notion that there could be reason to assume that the data subject’s interests might be prejudiced. It is highly unlikely that a civil servant could be recognised by their voice, taking into account that staff of DG Sante can be hardly defined as so well known that their voice alone is enough to identify the person.

Moreover, arguing the privacy exception is applicable is a contentious claim. Indeed,
Regulation 1049/2001 states in recital 11: "In principle, all documents of the institutions should be accessible to the public. However, certain public and private interests should be protected by way of exceptions. The institutions should be entitled to protect their internal consultations and deliberations where necessary to safeguard their ability to carry out their tasks. In assessing the exceptions, the institutions should take account of the principles in Community legislation concerning the protection of personal data, in all areas of Union activities." An advisory group meeting cannot be defined as an "Internal consultations".

Article 4(1)(a) of the Regulation provides for exceptions where disclosure would undermine the protection of "(b) privacy and the integrity of the individual". A Commission official acting in official capacity should always act in a way that the integrity of him/her and of the Commission is ensured. Since it was not an internal meeting of the Commission, the Head of Unit was not expressing its personal or private opinion in that meeting, but the opinion of the Commission.

3. Failure to consider partial access:

The decision was made to refuse partial access because ‘it would be necessary to use different tools in order to extract the requested part of the recording and to distort the voice of the speaker. Such manipulations cannot be considered as standard operations to be performed by Commission services’. We refute that argument. Especially if from now on the Commission considers all types of recording as personal information to be excluded from access to document requests, refusing to isolate a specific part of the recording, or alter the voice of the speaker, or even provide a transcript of the video, this would deprive European citizens from accessing a substantial part of documents and be disproportionate and be a violation or Regulation (EC) No 1049/2001, as already established above.
There is no question at this point – not even from the Commission’s side – that a recording falls under the definition of a document provided in Article 3 (a) of Regulation 1049/2001. To this extent, we recall that Article 4 (6) of Regulation 1049/2001 establishes that “If only part of the requested document are covered by any of the exceptions, the remaining parts of the documents shall be released”. This article is therefore fully applicable in this case. Not allowing access to any audio recordings would render the entire regulation devoid of purpose.

There is also no question that redaction and alteration of other documents in other forms (such as written documents) is indeed a standard operation performed on a regular basis by the Commission in order to grant partial access to EU documents. The Commission should therefore find a way to ensure that it can grant partial access to all documents as soon as Article 4 (6) becomes applicable, instead of limiting the application of that provision to documents in a written form only.

I am therefore, by the means of this confirmatory application, calling on DG Sante to release the document I requested on 22 May 2019, ensuring partial access is granted when applicable.

A full history of my request and all correspondence is available on the Internet at this address: https://www.asktheeu.org/en/request/reco...

Yours faithfully,

Mute Schimpf

--
Friends of the Earth Europe
Rue d’Edimbourg 26
1050 Brussels
Belgium