EUROPEAN COMMISSION
Brussels, 16.9.2022
C(2022) 6769 final
Greta Rosén Fondahn
Cava de San Miguel 8
4º C, 28005 Madrid
Spain
ask+request-11278-
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ask+request-11279-
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DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject: Your confirmatory application for access to documents – GESTDEM
2022/2940 and 2941
Dear Ms Rosén Fondahn,
I am writing in reference to your email of 25 July 2022, registered on 26 July 2022, by
which you lodge a confirmatory application in accordance with Article 7(2) of Regulation
(EC) No 1049/2001 regarding public access to European Parliament, Council and
Commission documents2 (hereafter ‘Regulation (EC) No 1049/2001’).
Through your initial applications of 22 May 2022, you requested access to the following
documents:
1) ‘all emails sent from Head of Unit Lucilla Sioli to Director-General Roberto
Viola during the period 1 February 2021 to 1 March 2021’3;
2) ‘all emails sent from Director-General Roberto Viola to Head of Unit Lucilla
Sioli during the period 1 February 2021 to 1 March 2021’;4 and
1 Official Journal L 345, 29.12.2001, p. 94.
2 Official Journal L145, 31.05.2001, p. 43.
3 Request registered under GestDem 2022/2940.
4
Ibid.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
3) ‘all email correspondence between Lucilla Sioli, Head of Unit, and Nathalie
Smuha, AI HLEG Coordinator.’5
By letter of 15 July 2022, the Directorate-General for Communications, Networks, Content
and Technology informed you that it was not able to identify any documents as falling
within the scope of your request.
In your confirmatory application, you request a review of this initial reply.
Against this background, the European Commission has carried out a renewed, thorough
search for the documents requested. Following this renewed search, I confirm that the
Commission does not hold any documents that would correspond to the description given in
your application.
In accordance with Article 3(a) of Regulation (EC) No 1049/2001, a ‘document’ shall mean
any content whatever its medium concerning a matter relating to the policies, activities and
decisions falling within the institution's sphere of responsibility.
However, the institution is not obliged to register and preserve each and every document. In
accordance with Article 7(1) of Commission Decision of 6 July 2020 on records
management and archives6, ‘[d]ocuments shall be registered if they contain important
information which is not short-lived or if they may involve action or follow-up by the
Commission or one of its departments’. Moreover, Article 2(3) of Regulation (EC)
No 1049/2001 provides that the right of public access as defined in that regulation applies
only to existing documents held by the institution. Furthermore, pursuant to settled case-
law, ‘the right of access to documents of the institutions applies only to existing documents
in the possession of the institution concerned and Regulation No 1049/2001 may not be
relied upon to oblige an institution to create a document which does not exist. It follows that
an application for access that would require the Commission to create a new document, even
if that document were based on information already appearing in existing documents held
by it, falls outside the framework of Regulation No 1049/2001.’7
In the light of the above, given that the European Commission does not hold such
documents corresponding to the description given in your application and it is not in a
position to fulfil your request.
5 Request registered under Gestdem 2022/2941.
6
https://ec.europa.eu/info/sites/info/files/c_2020_4482_en.pdf.
2
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
European Ombudsman under the conditions specified respectively in Articles 263 and 228
of the Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Ilze JUHANSONE
Secretary-General
3