Ref. Ares(2022)2198276 - 25/03/2022
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR COMMUNICATIONS NETWORKS, CONTENT AND
TECHNOLOGY


The Director-General
Brussels,
CNECT.R.4.001/RV
Politico
Rue de la Loi 62
1040 Brussels
Belgium

Advance copy via emails:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx

Registered letter with acknowledgement of receipt
Subject:
Your applications for access to documents - GestDem 2022/0665,
2022/0667, 2022/0673 and 2022/0693
Dear Sir/Madam,
We refer to  your emails dated 31 January 2022 wherein each of you make a request for
access  to  documents  pursuant  to  Regulation  (EC)  No  1049/2001  of  the  European
Parliament  and  of  the  Council  of  30  May  2001  regarding  public  access  to  European
Parliament,  Council  and  Commission  documents  (hereinafter  ‘Regulation  1049/2001’),
registered  under  the  abovementioned  reference  numbers.  We  also  refer  to  our  emails,
dated 21 and 22 January 2022, whereby we informed you that the time limit for handling
your  applications  was  extended  by  15  working  days  pursuant  to  Article  7(3)  of
Regulation 1049/2001.
We apologize for the delay in our response.
1.
SCOPE OF YOUR APPLICATIONS
Your applications cover the period between June 2021 and January 2022 and concern:
GestDem  2022/0665:  ΄΄Exchanges  on  TTC  (Trade  and  Technology  Council)  with
DG Justice & DG RTD΄΄
GestDem  2022/0667:  ΄΄Exchanges  on  the  Transatlantic  Trade  &  Technology
Council with DG GROW & DG CLIMA΄΄,

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx

GestDem 2022/0673: ΄΄All  briefings, minutes, scoping  papers,  deliverables for  the
EU-US Trade and Technology Council held by DG Connect΄΄,
  GestDem 2022/0693: ΄΄Exchanges on TTC with DG Trade΄΄
The  circumstances  of  the  introduction  of  these  requests  originating  from  applicants
belonging  to  the  same  organisation,  their  timing,  their  scope,  as  well  as  their  wording
give us the impression that a very wide-scoped request was split in parts and  introduced
in a coordinated way as seemingly separate requests.
Given the wide-scope of your combined request and taking into account the other access
to documents request (GestDem 2021/7392) submitted by another applicant belonging in
your organisation and with a scope similar to the scope of the abovementioned requests
we  contacted  you  on  18  February  2022  with  a  view  to  finding  a  fair  solution  based  on
Article 6(3) of Regulation 1049/2001 (our reference, Ares(2022)1241878). We indicated
the  steps  that  the  handling  of  your  application  would  entail  and  we  concluded  that
according  to  our  estimate  we  would  be  able  to  deal  with  in  total  a  maximum  of  15
documents falling within your combined wide scoped request.
You did not reply to our fair solution proposal.
In  line  with  the  principles  of  sound  financial  management  and  good  administration  to
which  the  Commission  is  bound  to  pursuant  to  Article  310(5)  of  the  Treaty  on  the
functioning  of  the  European  Union,  we  are  obliged  to  balance  your  interest  in  access
against  the  workload  resulting  from  the  processing  of  your  application.  This  is  in  line
with the case law of the EU Courts1.
We have therefore restricted the scope of your application to what we could achieve, with
DG CONNECT’s scarce resources within the given timeframe as announced in our fair
solution proposal.
2.
DOCUMENTS FALLING WITHIN THE SCOPE OF THE REQUEST
Within the given timeframe we were able to identify and assess the following documents
which fall within the scope of your combined application after having been restricted as
set out above:
- Minutes, 10/9/2021 (Document 1)
- Minutes, 15/9/2021 (Document 2)
- Minutes, 3/12/2021 (Document 3)
- Minutes, 18/1/2022 (Document 4)
- Minutes, 25/1/2022 (Document 5)
- Email exchange of 16-17/9/2021 (Document 6)
- Email exchange of 23/9/2021 (Document 7)

1
Judgment  of  the  Court  of  Justice  of  2  October  2014  in  case  C-127/13,  Strack  v  Commission,
paragraphs 27-28
2

-Email exchange of 15/12/2021 (Document 8)
-Email exchange of 10/12/2021 (Document 9)
-Email of 31/1/2022 (Document 10) and the attached scoping paper (Document 11)
-Scoping paper (Document 12)
-Scoping paper, 14/9/2021 (Document 13)
-Scoping paper, 8/10/2021 (Document 14)
-Scoping paper, 14/12/2021 (Document 15)
3.
ASSESSMENT UNDER REGULATION 1049/2001
Having assessed the identified documents under the provisions of Regulation 1049/2001,
I regret to inform  you that access to the identified documents cannot be granted as they
are  covered  by  exceptions  to  the  right  of  access  laid  down  in  Article  4  of  Regulation
1049/2001.
(i) Protection of international relations
Article 4(1)(a), third indent of Regulation 1049/2001 stipulates that access to a document
shall be refused where disclosure would undermine the protection of the public interests
as regards international relations.
According  to  settled  case-law,  "the  particularly  sensitive  and  essential  nature  of  the
interests  protected  by  Article  4(1)(a)  of  Regulation  No  1049/2001,  combined  with  the
fact that access must be refused by the institution, under that provision, if disclosure of a
document to  the public would undermine those interests, confers on the decision which
must thus be adopted by the institution a complex and delicate nature which calls for the
exercise of particular care. Such a decision therefore requires a margin of appreciation"2.
In this context, the Court of Justice has acknowledged that the institutions enjoy "a wide
discretion for the purpose of determining whether the disclosure of documents relating to
the fields covered by [the] exceptions [under Article 4(1)(a)] could undermine the public
interest"3.
The  identified  documents  are  covered  by  the  abovementioned  exception  of  Regulation
1049/2001.
These  documents  relate  to  the  EU-US  Trade  and  Technology  Council.  Since  there  are
ongoing negotiations between the EU and the US in this context, there is a concrete risk
that  the  public  disclosure  of  these  documents  would  not  only  have  a  negative  effect  on
the  negotiating  capacity  of  the  EU  but  also  affect  the  mutual  trust  between  the  EU  and
the US and thus undermine their relations. As the Court recognised in Case T-301/10 in’t
Veld  v  Commission,  “[…]  establishing  and  protecting  a  sphere  of  mutual  trust  in  the
context of international relations is a very delicate exercise”4 .

2
See Judgment in Sison v Council, C-266/05 P, EU:C:2007:75, paragraph 36.
3
Judgment in Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039, paragraph 63.
4
Judgment in Sophie in’t Veld v Commission T-301/10, EU:T:2013:135, paragraph 126.
3

Consequently, access to the requested documents has to be refused as there is a real and
non-hypothetical risk that their disclosure would undermine the public interest as regards
international relations.
(ii) Protection of privacy and integrity of individuals
Disclosure  of  the  email  exchanges  and  parts  of  minutes  is  also  prevented  by  the
exception concerning the protection of privacy and integrity of the individual outlined in
Article 4(1)(b) Regulation 1049/2001, since they contain the following personal data:
- Names, functions and contact information of Commission staff members not pertaining
to the senior management
- Names of other natural persons
Article  9(1)(b)  of  the  Data  Protection  Regulation5  does  not  allow  the  transmission  of
these personal data, except if you prove that it is necessary to have the data transmitted to
you for a specific purpose in the public interest and where there is no reason to assume
that the legitimate interests of the data subject might be prejudiced. In your request, you
do not express any particular interest to have access to these personal data nor do you put
forward  any  arguments  to  establish  the  necessity  to  have  the  data  transmitted  for  a
specific purpose in the public interest.
Consequently, I conclude that, pursuant to Article 4(1)(b) Regulation 1049/2001, access
cannot be granted to the requested documents, as the need to obtain access thereto for a
purpose in  the public interest  has  not  been substantiated and there is  no reason to  think
that  the  legitimate  interests  of  the  individuals  concerned  would  not  be  prejudiced  by
disclosure of the personal data concerned.
(iii) Protection of the decision-making process
The first subparagraph of Article 4(3) of Regulation 1049/2001 provides that ‘[a]ccess to
a  document,  drawn  up  by  an  institution  for  internal  use  or  received  by  an  institution,
which relates to a matter where the decision has not been taken by the institution, shall be
refused  if  disclosure  of  the  document  would  seriously  undermine  the  institution’s
decision-making process, unless there is an overriding public interest in disclosure.’
The  identified  documents  contain  sensitive  information  with  regard  to  ongoing
procedures  in  the  context  of  the  EU-US  Trade  and  Technology  Council.  They  also
contain  considerations,  reflections  and  views  of  the  Commission  services  and  of  other
parties.  This  content  is  subject  to  ongoing  discussions  and  deliberations.  The  risk  of
disclosing  sensitive  information  regarding  the  Commission  services’  and  other  parties’
preliminary  views  while  the  relevant  decision-making  process  is  still  ongoing  would
deter  them  from  freely  expressing  their  opinions  and  having  frank  discussions.
Speculations and misinterpretations of the public on the views, positions, considerations
put forward in an early stage of the decision-making process would affect the exploration
of  different  options  and  unduly  restrict  the  Commission’s  internal  space  to  think,
exposing  the  Commission  to  external  pressure.  Disclosure  of  these  documents  would

5
Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the
protection of natural persons with regard to the processing of personal data by the Union institutions,
bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No
45/2001 and Decision No 1247/2002/EC, OJ L 295, 21.11.2018, p. 39.
4

therefore  seriously  undermine  the  ongoing  decision-making  process.  This  risk  is  also
reasonably foreseeable and not purely hypothetical.
Consequently,  access  to  the  identified  documents  should  be  refused  as  they  are  also
covered  by  the  abovementioned  exception  of  Article  4(3)  first  subparagraph  of
Regulation 1049/2001.
Please note that you can access Trade and Technology Council public documents via the
following link:
https://digital-strategy.ec.europa.eu/en/policies/trade-and-technology-council
4.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(3) of Regulation 1049/2001 applies, unless there is
an  overriding  public  interest  in  the  disclosure  of  documents.  Such  an  interest  must,
firstly,  be  a  public  interest  and,  secondly,  outweigh  the  harm  caused  by  disclosure.  We
have examined whether there could be an overriding public interest in the disclosure of
the aforementioned documents but we have not been able to identify such an interest.
5.
PARTIAL ACCESS
We have considered whether partial access could be granted to the documents identified.
However,  no  meaningful  partial  access  is  possible  considering  that  the  documents
concerned are covered in their entirety by the abovementioned exceptions of Regulation
1049/2001.
6.
CONFIRMATORY APPLICATION
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 faithfully,
Electronically signed
Roberto Viola
5
Electronically signed on 24/03/2022 19:04 (UTC+01) in accordance with Article 11 of Commission Decision (EU) 2021/2121

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