Ref. Ares(2022)4615079 - 23/06/2022
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR RESEARCH & INNOVATION
Directorate B - Common Implementation Centre
B.1 - Common Legal support service
First meeting of 2019 of the access to documents legal coordinators of the Research
& Innovation family
Wednesday, 17 July 2019
15:00 – 17:00, ORBN 06/
MINUTES
Participants:
(IMI2 JU),
(ERCEA),
(CNECT),
CNECT),
(MOVE),
(EASME),
(EAC),
(ENER),
(RTD),
(RTD),
(RTD),
(RTD).
1. Coordination of requests submitted to multiple Commission services and
EAs and JUs (requests for information vs. requests for access to documents;
Fragdenstaat and asktheEU platforms; etc.)
Recently, there have been several cases of multi-services requests submitted by
applicants via the AsktheEU platform and/or the German Fragdenstaat platform.
The requests are usually sent directly to the services and often arrive in the ATD FMB
Junk e-mail folder, therefore these are to be regularly checked.
For some of the cases the Secretariat-General considered them to be requests for access
to information
In addition, regarding requests from Fragdenstaat, in May 2019 the SG instructed
Commission services that all current and future applicants using this platform will
receive an automatic message asking them to submit their request through the Regdoc
form. The SG clarified that they will provide additional information on the content of the
message and how to set it up for automatic replies. Currently there is no such information
provided by the SG and there is no specific message for the acknowledgments of receipt
for requests made through the Fragdenstaat platform. Therefore, for the moment the
standard template for AoR is to be used. It is important to note also that the Fragdenstaat
has a system, which automatically hides personal data on its website, so no disclaimer in
this sense is to be included in the standard AoR.
2. Initial decision
Data concerning H2020 rejected proposals – GestDem 2019/2176
The applicant requested access to data concerning all H2020 rejected proposals, and in
particular, for each proposal: (i) proposal title, (ii) abstract, (iii) consortium composition,
(iv) call and topic, (v) funding requested, (vi) allocation of the funding requested by
partner.
We qualified the application as an access to documents request, on the basis of the
judgment of the Court of Justice T-214/13 according to which data extracted by a
database using a routine tool constitute a “document” within the meaning of Regulation
1049/2001.
On the substance of the request, we decided to provide the applicant only with a part of
the requested data, while we withheld (i) the consortia composition and (ii) the funding
allocation, based on the exception of the protection of commercial interests. In particular,
in our opinion, data concerning the consortia composition allows identifying the
unsuccessful applicants and they are therefore commercially relevant, as the rejection of
the unsuccessful applicants’ proposals could adversely affect their image towards
potential commercial partners.
The applicant challenged our reply on this point and SecGen is currently handling the
confirmatory application.
3. Confirmatory decision by SG
Overriding public interest in transparency - GestDem 2019/707
We received a request related to documents from the evaluation and the redress of an
H2020 proposal. Following examination of the request, we granted partial access to all
the identified documents, with the exception of the
individual evaluation reports to
which no access was granted based on the Commission’s decision-making process
exception. The arguments were the following: individual evaluation reports form an
integral part of that decision-making process and their confidentiality is therefore
essential. The requested documents contain the opinions of the individual experts and
relate thus to a very early step within a complex evaluation process at the end of which a
funding decision is taken. Public disclosure of the opinions of the expert evaluators
would have impact on the other ongoing and future evaluations. Indeed, such disclosure
would lead to the risk of experts’ and panel members’ self-censorship and as the result,
the European Commission would no longer be able to explore all possible options free
from external pressure. Consequently, this would prejudice the margin of manoeuvre of
the European Commission and, thus, undermine the integrity of the decision-making
process of the Commission concerning the award of grants under Horizon 2020
programme.
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In
confirmatory application the applicantargued that the requested documents should
be disclosed in the general overriding public interest of transparency, in order to allow
for public verification whether the alleged fraud of public fund actually occurred (or not).
The SG overruled this argument, based on the Strack case, according to which, in order
to establish the existence of an overriding public interest in transparency, it is not
sufficient to merely rely on that principle and its importance1. Instead, an applicant has to
show why in the specific situation the principle of transparency is in some sense
especially pressing and capable, therefore, of prevailing over the reasons justifying non-
disclosur. SG ruled that the applicant had not demonstrated how and in what manner
public disclosure of the withheld documents would be beneficial for examination of the
alleged frauds in relation to financing the projects under Horizon 2020 programme.
SGalso emphasised that any potential case of fraud of mismanagement of the EU funds
should be examined by the competent bodies (such as fOLAF), in line with the relevant
procedures. These procedures are based on the principle of confidentiality of the material
and evidence examined in their course. Therefore public disclosure of the (parts of the)
documents concerned, would not facilitate these procedures, but in contrary, it would
undermine their purpose.
Financial documents related to FP6 projects- GestDem 2019/0314
The request concerned financial documents related to the participation of a company to
25 FP6 projects, some of them handled by DG RTD and some others handled by DG
CNECT.Those projects had been subject to an audit performed by the Commission,
which had led to an OLAF investigation and, afterwards, to a criminal proceeding in
front of the
authorities, with charges of fraud.
At the time of the request, the criminal proceeding was still pending in front of the
tribunal and the Commission had nominated an external lawyer to evaluate the
opportunity of participating to the proceeding.
Given the above-mentioned circumstances, we assessed the possibility of invoking the
court proceedings exception against disclosure of the requested documents. The
exception can be applied when three criteria exists, as explained below.
(i) A Court proceeding - the Court of Justice affirmed, in case T-796/14, that the
exception could apply to proceedings pending in front of a national court whether a
question of interpretation or validity of an act of EU law so that a preliminary ruling
appears particularly likely.
We consulted SG and the Legal Service concerning the interpretation of this criterion.
According to the Legal Service, the applicability of Court proceedings exception should
be interpreted and applied strictly and therefore the link with EU law of the national
proceeding should be only on a matter of interpretation of EU law and not on facts.
1 Judgment of the Court of Justice of 2 October 2014 in Case C-127/13 P,
Strack v Commission,
(ECLI:EU:C:2104:2250), paragraph 128.
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According to SG the case law should not be construed too restrictively, at least at the
initial stage of reply to an access to documents request. In their opinion the exception can
be invoked when a reasonable link with an EU act or legislation exists.
In our assessment we took into account the fact that the charges of the national court
related to the fraudulent use of EU funds during the implementation of the projects and
that the launch of the national investigation and criminal proceeding was triggered by the
OLAF investigation on the implementation of the projects. On the basis of the above, we
considered that a sufficiently strong link between EU law and the national proceeding
existed in order to invoke the relevant exception.
(ii) As per Regulation 1049/2001, the exception applies to ‘
documents drawn up solely
for the purposes of specific court proceedings’. According to the case-law, this wording
must be understood to mean the pleadings or other documents lodged, internal
documents concerning the investigation of the case, and correspondence concerning the
case between the Directorate-General concerned and the Legal Service or a lawyers. In
our case, the requested documents were all relevant for the investigation of the case, as
they referred to the financial management of the mentioned projects. We therefore
considered them to fall within the scope of the exception.
(iii) In order to invoke the exception, it has to be proven that disclosure of the documents
could undermine the principle of equality of arms or the Commission’s ability to defend
itself. In other words, the Commission has to be able to prove that disclosure of the
requested documents would undermine the equality of arms or its ability to defend itself.
In this regard, we took into account the fact that the external lawyer appointed by the
Commission was, at the time of our assessment, in the process of evaluating and
developing the strategy for the defence of the Commission’s interests within the national
proceeding. We therefore considered that disclosing, at that stage, evidence outside the
framework of the contentious proceeding could have been detrimental to the position of
the Commission in the adversarial proceeding.
We therefore refused access to the applicant on the basis of the mentioned exception,
without the possibility to provide meaningful partial access.
The reply was challenged and in its decision SG also refused access, invoking different
exceptions as per Regulation 1049/2001:
(i) Protection of commercial interests: even though the documents referred to already
closed projects, the information included could have still had commercial relevance;
(ii) protection of the purpose of inspection, investigation and audit: with reference to the
OLAF investigation, SG affirmed that all documents part of the file of an OLAF
investigation are protected by the mentioned exception (T-221/08). A general
presumption of non-disclosure covers documents concerning OLAF activities, in
particular but not limited to those documents which contain opinions for internal use as
part of deliberations and preliminary consultation. In this regard, according to SG it is
irrelevant whether the request for public access concerns ongoing or already closed
enquires. In addition, it was considered that the documents were falling under the scope
of the criminal investigation performed by the
authorities, as this also qualifies as
investigation as per the meaning of Regulation 1049/2001;
(iii) protection of privacy and integrity of the individual.
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4. Wide-scope requests
Handling of wide-scope requests according to the current administrative practice –
Confirmatory application GestDem 2019/1913
We received 15 access to documents requests from the same applicant, with the same
scope but concerning 28 different entities active in the health area.
After a first examination of the requests, we decided to treat them as one wide-scoped
request, according to Ryanair’s judgment T-494/08 in which the Court of Justice
established that Article 6(3) of Regulation 1049/2001 may not be evaded by splitting an
application into several, seemingly separate, requests.
We therefore explained to the applicant that
requests would have been treated as one
wide-scoped request which was too broad and we invited him to restrict the scope of the
request to a manageable number, proposing a possible option and specifying the
objective of his request and his interest.
The applicant replied with a first restriction of the scope; we assessed the restricted
request and informed the applicant that it was still too broad to be handled within the
deadline. We therefore invited
to reconsider a different restriction of the request.
then proposed to handle
request in batches, meaning a first part within the
deadline and the remaining part after the deadline. We explained that the Commission no
longer handles access to documents requests in batches, as clarified by the Court of
Justice in Judgment C-127/13, para. 26-28. We therefore reiterated our request for a
further restriction of the scope of the request.
Unfortunately, as it was not possible to agree on a fair solution, we decided to restrict
unilaterally the scope of the request to documents from or to one of the mentioned
entities, within a limited time frame and for which only redaction of personal data was
needed.
The replied was challenged in a confirmatory application but SG confirmed our position
and the procedure applied.
5. Interpretations of exceptions under Regulation1049/2001
Decision making and commercial interest (Joint Undertakings)
We consulted SG on the application of the commercial interests exception and the
decision-making exception to Joint Undertakings of the Commission, even though
Regulation 1049/2001 mentions only “institutions” and Joint Undertakings are EU bodies
but not institutions.
SG confirmed that EU bodies can have a proper decision-making process and that
therefore it is possible to invoke their decision-making protection, applying the exception
per analogy.
Also the exception protecting the commercial interests can be invoked for JUs; the
circumstance that JUs have a private partner reinforces this conclusion.
Disclosure of names of authors
We receive quite often requests for access to documents that relate to research studies,
reports, etc., published or not, all having the authors mentioned therein.
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According to the newest SG guidance on disclosure of third party’s personal data, revised
on 11 April 2019 (Fiche 9):
“
Names of outside individuals, who are not public figures acting in their public
capacity, are normally withheld, unless the following (cumulative, successive)
conditions are fulfilled:
the applicant substantiates a necessity for a specific purpose (demonstrated by
express and legitimate justifications or convincing arguments) to obtain access to
these names;
there is no reason to think that the transfer would prejudice the legitimate rights of
the individuals concerned (for instance, if the data subject has unambiguously given
his/her consent or his name is proactively published under the applicable rules);
the institution considers the transmission proportionate for the specific purpose
brought forward by the applicant, after having demonstrably weighed the various
competing interests;
there must be no less invasive measures available, taking into account the principle
of proportionality.”
We consider that the names of the individuals in their capacity as authors of the
document requested, or of reference documents listed in the reference section of the
document requested, can be made public, if it is clear that the authors have exercised
their right to claim authorship and be identified as authors (e.g. their names in their
capacity as authors of the document requested and/or authors of the references cited
therein are publicly accessible online and have been made public by a trustworthy
source). It could be considered that the authors (the data subjects), whose names are
publicly accessible online and have been made public by a trustworthy source, have
provided their consent in a way which leaves no doubt that they agree to the disclosure of
their personal data (i.e. their names) in their capacity as authors of the documents they
produced (Article 5(d) of Regulation 2018/1725).
It would be therefore redundant for the applicant to, for example, expressly ask for this
type of personal data when requesting specifically access to a research report or study
that has, by default, the names of the authors published on the cover.
SG agreed with this interpretationand clarified that in such a case indeed, the protection
of personal data should not interfere with the protection of intellectual property..
6. SG guidance: 58th meeting of the network of access to documents
coordinators, 25 June 2019
Updated guidance on procurement and grants as of 19 June 2019
https://myintracomm.ec.europa.eu/sg/docinter/Documents/guidance-note-procurement-
grand-award-procedures.pdf
Updated guidance on personal data of third parties as of 11 April 2019
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https://myintracomm.ec.europa.eu/sg/docinter/Documents/Fiche9-Third-
party_names_and_signatures.pdf
Level of signature for initial access to document requests
https://myintracomm.ec.europa.eu/sg/docinter/Documents/who-signs-initial-atd-reply.pdf
Wide-scope requests
In case of a wide-scoped request referring to meetings, if after proposing a fair
solution a unilateral restriction is needed, the Commission service should focus on
meetings published on the Transparency Register.
According to the opinion of the Legal Service, if the request covers up to 20
documents it cannot be considered as a wide scope request (the size of the
documents is also to be taken into account).
Overruling third party’s consultation
SG reiterated that consultation of a third party is needed only if it is unclear
whether access should be refused/granted.
Overruling of the third party’s opinion is possible,
but not advisable; overruling
implies that certain administrative steps need to be taken and the legal/political risk
must be assessed before disclosure. More precisely, in case the Commission service
intends to overrule the third party’s opinion:
- a letter needs to be sent to the applicant explaining that the Commission
intends to overrule the Member State/third party’s refusal;
- in accordance with the rules of application, the Member State/third party
must be informed before disclosure of the Commission’s decision to
disclose [art.5 (6)]. This decision can be attacked before the Court;
- the Legal Service and the political hierarchy must also be informed before
disclosure.
Clarification requests
If clarifications are asked, you should note in the DG comments field in GestDem:
o
“Clarification request sent on….” o
“Reply to clarification request received on…”
and recalculate the deadline of the request by changing the registration date and
replacing it with the date when the reply was received. Clarifications may be asked
one or two days after the receipt of you request, depending on the time needed for
internal consultation in the DG.
If the applicant does not reply to the request for clarifications, the DG may close
the request, after informing him.
Data breach
In case of erroneous disclosure of personal data, the following steps need to be
taken:
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- inform the HoU in charge of the request, the DPC and SG.C.1;
- identify the relevant facts that led to the breach;
- take measures to restrain the breach and to eliminate/mitigate consequences:
inform the person that received the relevant personal data by
mistake and ask him/her to sign a declaration, stating that he is not
going to use the personal data.
- inform AsktheEU, if applicable;
- launch a procedure to remove personal data from Google cache (see Google
privacy statement) or search engines, if applicable;
- conduct an assessment of the risk for rights and freedoms of data subject(s)
concerned (in accordance with the DPO guidance):
inform the EDPS without undue delay and in any case within 72
hours after the controller became aware of the breach (fill in the
relevant form).
in case of high risk of harm (e.g. data published in asktheEU for a
long time), also inform the data subjects involved.
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