Ref. Ares(2015)1613307 - 15/04/2015
From:
(SJ)
Sent:
Friday 10 April 2015 10:57
To:
(SG)
Cc:
(SJ); SG DOSSIERS ACCES;
(SG)
Subject:
RE: Demande confirmative - Recours ZINSER Klaus (AskTheEU) - Gestdem
2015/662 & 2015/667 - Consultation SJ - délai 15/4
Importance:
High
Dear
Please find enclosed some comments and questions concerning this draft decision.
As regards the protection of commercial interests, I am wondering whether we should reinforce
our reasoning by mentioning the Cosepuri case law (T-339/10 and T-532/10). See in particular
some parts of paragraph 100 of the judgment delivered on 29 January 2013.
Next, it must be noted that the requirement to protect tenderers’ bids vis-à-vis other tenderers is
consistent with the relevant provisions of the Financial Regulation, in particular Article 100(2)
thereof – also referred to by EFSA in its decision of 15 September 2010 – which does not provide
for the disclosure of the tenders submitted, even after written application by the unsuccessful
tenderers (see, with regard to disclosure of the tender accepted, the order in Evropaïki Dynamiki
v EEA, paragraph 49 above, paragraph 39 and the case-law cited). That restriction is integral to
the objective of EU rules on public procurement, which is based on undistorted competition. In
order to attain that objective, it is important that the contracting authorities do not release
information relating to contract award procedures which could be used to distort competition,
whether in an ongoing procurement procedure or in subsequent procedures. Furthermore,
both by their nature and according to the scheme of EU legislation in that field, contract
award procedures are founded on a relationship of trust between the contracting authorities
and participating economic operators. Those operators must be able to communicate any
relevant information to the contracting authorities in the procurement process without fear
that the authorities will communicate to third parties items of information whose disclosure
could be damaging to them (see, by analogy, Case C-450/06 Varec [2008] ECR I-581,
paragraphs 34 to 36). It should also be noted that, in the light of Article 100(2) of the Financial
Regulation, unsuccessful tenderers are able to obtain the characteristics and relative advantages
of the successful tender and the name of the tenderer to whom the contract was awarded.
In the present case, I do not know which procedure was used – public procurement? Another type
of contract?
If there was no competition between Deloitte and other potential tenderers, of course this
argument is not relevant. But maybe you should check with DG JUSTICE.
Kind regards,
Ref. Ares(2015)1613307 - 15/04/2015
EUROPEAN COMMISSION
SECRETARIAT-GENERAL
The Secretary General
Brussels,
SG.B.4/MV/rc - sg.dsg2.b.4(2015)1510009
By registered mail:
Mr Klaus Zinser
Hauptstrasse 8
88427 Bad Schussenried
Germany
Copy by email:
xxxxxxxxxxx@xxxxxx.xx
Subject:
Your confirmatory request for access to documents – GESTDEM
2015/662 and 2015/667
Dear Mr Zinser,
I refer to your e-mails dated 26 February 2015, registered on 2 March 2015, in which you
make a confirmatory application in accordance with Article 7(2) of Regulation 1049/2001
regarding public access to European Parliament, Council and Commission documents1
(hereafter Regulation 1049/2001).
1. SCOPE OF YOUR REQUEST
In your initial applications of 30 January 2015, you had requested access to documents
which contain information regarding experts hired by the external contractor who was
contracted by the Commission to carry out an impact assessment study for the review of
Brussels IIa Regulation2. In this context you asked for information on the selection
procedure of these experts, their remuneration and CVs, contract as well as the
methodology of their work.
The Directorate-General Justice and Consumers (hereafter DG JUST) identified the
following documents as falling within the scope of your request:
1
OJ L145, 31.05.2001 p.43
2 OJ L 338, 23.12.2003 p.1, Council Regulation (EC) No 2201/2003 of 27 November 2003
concerning jurisdiction and the recognition and enforcement of judgments in matrimonial
matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000
Commission européenne, B-1049 Bruxelles / European Commission, B-1049 Brussel - Belgium. Telephone: (32-2) 299
1111. http://europa.eu.int/comm/secretariat_general
@ : xxxxxxxxxx@xx.xxxxxx.xx
• Terms of reference- Study on the assessment of the Regulation (EC) No
2201/2003 and the policy options for its amendment;
• Proposal on the Study on the assessment of the Regulation (EC) No 2201/2003
and the policy options for its amendment (JUST/2012/JCIV/FW/0195/A4).
In its initial reply of 18 February 2015 and it complementary initial reply of 24 March
2015, DG JUST:
• disclosed the Terms of Reference prepared by the Commission;
• refused access to the Proposal for a Study on the assessment of the Regulation
(EC) No 2201/2003 and the policy options for its amendment, prepared by the
external contractor, on the grounds of Article 4(2), first indent of Regulation
1049/2001 (protection of commercial interests of a natural or legal person)
;
• provided further information and links regarding the expert group on the Brussels
IIa Regulation, in particular the call for expression of interest with a view to
establishing a Group of Experts on the revision of this regulation and the public
consultation on the functioning of the Brussels IIa Regulation launched and
closed in 2014
.
Through your confirmatory application you request a review of the position taken by DG
JUST.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation 1049/2001, the Secretariat-General conducts an independent review of the
reply given by the Directorate-General concerned at the initial stage.
Following this review, I regret to inform you that I have to confirm the initial decision of
the DG JUST to refuse access to the Proposal on the Study on the assessment of the
Regulation (EC) No 2201/2003 and the policy options for its amendment, based on the
reasons set out below.
2.1 Protection of the on-going decision-making process
Article 4(3), first subparagraph of Regulation 1049/2001 provides that:
Access 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.
2
The work on the Study on the impact assessment of Brussels IIa Regulation under the
Framework contract "Impact Assessment for the assignment of the Monitoring and
Evaluation of communication activities" is still on-going. The aim of the study is to
evaluate the application of Brussels IIa Regulation and to assess its effects in terms of its
relevance, coherence, effectiveness, efficiency and EU added value and utility (status
quo), recommend possible amendments of the Regulation including their social and
economic impacts and to suggest and substantiate the choice of the preferred policy
option.
In 2014 the Commission, before deciding on a possible future review of the currently
applicable Brussels IIa Regulation, consulted stakeholders, individuals, legal
practitioners, academics, courts, national authorities and Member States, gave due
consideration to all the views collected during a public consultation3 and published its
final results later that year4. In this regard, I note that also your opinion submitted during
this public consultation will be taken into account in the current review process.
It must be underlined that when drafting legislative proposals, the Commission takes into
account all conflicting interests with a view to adopting a balanced proposal in the public
interest5.
In this sense, the study is a document designed to help structure the preparation of an
impact assessment and Commission legislative proposal aiming at developing an EU
policy. Policy choices contained in the future legislative proposal itself are supported by
the content of this document.
Disclosure of the study at this very early stage would seriously undermine the on-going
decision-making process of the Commission. In particular, it would prejudice the
institution's margin of manoeuvre and severely reduce its capacity to contribute to
reaching compromises.
An atmosphere of trust needs to be protected in order to allow maximum consent
between the contractor, experts and services involved. Access to the document requested
may, therefore, trigger a risk of external pressure by third-parties which could hinder the
delicate long-term process. In this regard it is to be noted that, according to Article 17(1)
TEU,
[t]he Commission shall promote the general interest of the Union and take
appropriate initiatives to that end. Furthermore, according to Article 17(3) TEU,
[i]n
carrying out its responsibilities, the Commission shall be completely independent.
However, I would like to point out that with the aim of bringing the decision-making
process closer to the citizen and fostering transparency, you can find a number of
documents available online which support the ongoing reflections6.
3
http://ec.europa.eu/justice/newsroom/civil/opinion/140415 en.htm.
4
https://ec.europa.eu/eusurvey/publication/BXLIIA.
5
See also Report on the application of Brussels IIa Regulation C(2014)225 final of 15 April 2014,
http://ec.europa.eu/justice/civil/files/matrimonial_act_part1_v3_en.pdf.
3
In addition, all other documents related to future impact assessments launched by the
Commission will be made public at the Impact Assessment Board's website on Europa
once the policy proposal is adopted by the College (http://ec.europa.eu/smart-
regulation/impact/index_en.htm).
On the basis of the above, access to the requested document has to be refused on the
grounds of Article 4(3), first subparagraph, of Regulation 1049/2001 since the decision-
making process is at a very early and delicate stage, and release of the document would
seriously undermine that decision-making process.
2.2. Protection of commercial interests
Article 4(2), first indent, of Regulation 1049/2001 provides that
[t]he institutions shall
refuse access to a document where disclosure would undermine the protection of (…)
commercial interests of a natural or legal person, including intellectual property, unless
there is an overriding public interest in disclosure.
The study to which you seek to obtain access reflects the specific know-how of the
successful contractor who submitted the proposal. More specifically, it explains in detail
the methodology to be followed, the assessment criteria of experts, their costs, the work
plan and the corresponding, detailed financial proposal and total budget.
Disclosure of this information would undermine the commercial interests protected by
Article 4(2), first indent of Regulation 1049/2001, as it would reveal sensitive details
about the organisation and way of working of the contractor which could be used by
competitors to the disadvantage of the competitive position of the company concerned.
It follows from the above that access cannot be granted to the document requested, as
such access would undermine the commercial interests of the contractor concerned
protected by Article 4(2), first indent of regulation 1049/2001.
General comment: I guess the contractor, Deloitte, was chosen after a competition
between several potential candidates. Did the process take place in the framework of a
public procurement? If it is the case, the Cosepuri case-law may be used to strengthen the
argument related to the protection of commercial interests.
2.3. Protection of privacy and integrity of individual
Article 4(1)(b) of Regulation 1049/2001 provides that
[t]he institutions shall refuse
access to a document where disclosure would undermine the protection of privacy and
the integrity of the individual in particular in accordance with Community legislation
regarding the protection of personal data.
6
http://ec.europa.eu/justice/civil/document/index en.htm;
http://ec.europa.eu/justice/index_en.htm#newsroom-tab
4
The document requested contains a preliminary list of legal experts chosen by the
contractor and a list of the members of the project team, in particular their names,
country of origin, organisation they work for or represent, years of professional
experience, languages spoken, CV etc. These undoubtedly constitute personal data in the
meaning of Article 2(a) of Regulation (EC) No 45/20017 (the Data Protection
Regulation). Article 2(a) of Data Protection Regulation provides that
"personal data"
shall mean any information relating to an identified or identifiable person […].
The Court of Justice confirmed in case C-465/00 (
Rechnungshof)8,
there is no reason of
principle to justify excluding activities of a professional […] nature from the notion of
“private life.
According to Article 8(b) of the Data Protection Regulation, which is fully applicable in
this case, personal data shall only be transferred to recipients if the recipient establishes
the necessity of having the data transferred and if there is no reason to assume that the
data subject's legitimate interests might be prejudiced.9 These two conditions are
cumulative.10
Moreover, based on the Commission's own assessment, disclosure of these data would
carry a real and non-hypothetical risk of harming the privacy and integrity of the
individuals concerned, as this would expose the latter to undue external pressure,
criticism and unsolicited contacts.
Having regard to the above, I have to conclude that the exception under Article 4(1)(b) of
Regulation 1049/2001 is applicable to the personal data appearing in the document, and
that access thereto has to be refused on this basis.
3. OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2), first indent and 4(3), first subparagraph of
Regulation 1049/2001 must be waived if there is an overriding public interest in
disclosure. Such an interest must, firstly, be public and, secondly, outweigh the harm
caused by disclosure.
7
Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000
on the protection of individuals with regard to the processing of personal data by the
Community institutions and bodies and on the free movement of such data, Official Journal L
8
of
12.1.2001.
8
Judgment of the Court of 20 May 2003,
Rechnungshof and Österreichischer Rundfunk, in joined
cases C-465/00, C-138/01 and C-139/01
9
Ibid., paragraph 73.
10
Judgment of the Court (Grand Chamber) of 29 June 2010,
Commission v Bavarian Lager, in case
C- 28/08 P, paragraphs 56, 63, 68, 76-79.
5
In your confirmatory application you do not include any arguments demonstrating the
existence of an overriding public interest in disclosure of the study requested that would
outweigh the protection of the commercial interests of the contractor and of the on-going
decision-making process. Nor have I been able to identify any public interest in the
disclosure of the document requested. On the contrary, the reasoning set out above
demonstrates that the public interest is better served in this case by ensuring that the
document requested is not disclosed.
Furthermore, I must underline that your application for access to documents is being
treated under Regulation 1049/2001. This Regulation concerns the right to have public
access to European Parliament, Council and Commission documents. Indeed, if access is
granted to a document under Regulation 1049/2001, this document becomes accessible to
the public at large (
erga omnes). Therefore, I regret to inform you that any possible
individual interest in obtaining the document in question cannot be taken into
consideration for the purpose of deciding on your request for access
Indeed, disclosure of the document requested would undermine the on-going decision-
making process at this early stage and therefore, hinder the possibility of achieving the
best compromise in the interest of the citizens.
Consequently, I consider that in this case there is no overriding public interest that would
outweigh the interest in safeguarding the decision-making process protected by Article
4(3), first subparagraph of Regulation 1049/2001.
4. PARTIAL ACCESS
I have also considered the possibility of granting partial access to the document in
accordance with Article 4(6) of Regulation (EC) No 1049/2001. However, partial access
is not possible considering that the document is covered in its entirety by the invoked
exceptions. [Comment: it is true as regards Article 4 (3) and also Article 4 (2), first
indent (if one could argue that the whole document is a proposal made in the context of a
public procurement), but concerning personal data, redactions would have been possible.
Therefore, we should maybe explain that we consider that the whole document should be
protected, at least on the basis of Article 4 (3), and possibly also on the basis of Article 4
(2), first indent.]
5. MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress that are available
against this decision, that is, judicial proceedings and complaints to the Ombudsman
under the conditions specified respectively in Articles 263 and 228 of the Treaty on the
Functioning of the European Union.
Yours sincerely,
6
Catherine Day
7