DG TRADE
VADEMECUM ON
ACCESS TO DOCUMENTS
This vademecum will be updated regularly on the basis of the practical
experience gained in handling requests for access to documents
Article 42 of the Charter of Fundamental Rights of the EU
Any citizen of the Union, and any natural or legal person residing or
having its registered office in a Member State, has a right of access to
documents of the institutions, bodies offices and agencies of the Union,
whatever their medium.
Article 15 of the Treaty on the Functioning of the EU
1. In order to promote good governance and ensure the participation of
civil society, the Union's institutions, bodies, offices and agencies shall
conduct their work as openly as possible.
3. Any citizen of the Union, and any natural or legal person residing or
having its registered office in a Member State, shall have a right of access
to documents of the Union's institutions, bodies, offices and agencies,
whatever their medium (…).
10 things to remember on Access to Documents
1.
All documents, including e-mails and meeting reports, created by us and
received from third parties, can be the subject of access to document
requests.
2.
Applicants do not have to indicate who they are nor the reasons for their
request. However, they have to indicate a valid postal address.
3.
The European Commission is committed to the widest possible access. We
must give reasons for any refusal to grant access; the only grounds are
those set out in the
exceptions in the Regulation 1049/01 (i.e. public
security, defence and military matters; harm to international relations;
economic policy; protection of privacy and integrity of individuals;
protection of commercial interests, court proceedings and legal advice;
investigations; and serious harm to decision-making - which can include
the negotiating process).
4.
No type of documents held by DG Trade can be automatically excluded
from access: each document has to be examined
case-by-case, on the
basis of its actual
content to see whether any exception applies. Even if
an exception applies, it may still be in the
public interest to release the
information.
5.
If only parts of a document are subject to an exception, the rest of the
document must be released ("
partial disclosure").
6.
It is
for the Commission to decide whether a document is released or
not. Third parties will only be consulted in case of doubt.
7.
Deadlines to reply are very tight, i.e. generally within 15 or 30 working
days. Failure to reply is equivalent to refusing access.
8.
Remedies: Refusals or partial disclosure can be appealed ("confirmatory
application") to the Secretary General. If the refusal is upheld, the
applicant can bring an action for annulment to the General Court or
complain to the Ombudsman.
9.
When you share or request information from
third parties (e.g. FTA
questionnaires, exchanges with negotiating parties), do not forget to
mention that the information provided is subject to the EU rules on Access
to Documents.
10.
Make sure your
filing allows you to find documents, even after people
have left the unit. Documents, except those that are short-lived, should be
filed in ARES.
2
I.
OVERALL PRINCIPLES
– Any document is public unless its content is covered fully or partially by exception/s in
the Regulation.
– A document corresponds to any content whatever its medium (written on paper,
stored in electronic form and even sound, visual or audiovisual material) concerning a
matter relating to the policies, activities and decisions falling within the institution's
sphere of responsibility.
– In a democratic system, openness enables citizens to participate more closely in the
decision-making process, guarantees that the administration enjoys greater
legitimacy, is more effective and more accountable to the citizen.
A legal obligation
– Article 15 Treaty on the functioning of the EU ("TFEU")
– Article 42 Charter of Fundamental Rights of the EU
– Regulation No 1049/2001 of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (O.J. L 145, 31.5.2001, p. 43) (the
"Regulation"), available
at http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=uriserv:OJ.L_.2001.145.01.0043.01.ENG&toc=OJ:L:2001:145:T
OC
– Implementing decision adopted by the Commission on 5 December 2001 (O.J. L 345,
29.12.2001, p. 94) (the "Implementing decision"), available at
http://eur-
lex.europa.eu/legal-content/EN/TXT/?qid=1454323698846&uri=CELEX:32001D0937
Who can apply?
– Any EU citizens, and natural or legal persons residing or having its registered office in
a Member State (Art. 2(1) of the Regulation), as well as
– Citizens of third countries not residing in a Member State and legal persons not having
their registered office in one of the Member States (Art. 2(2) of the Regulation and
Art. 1 of the Implementing decision). The latter category does not have the possibility
of raising the issue with the EU Ombudsman, but may bring an action before the
General Court (Art. 228(1) TFEU and Art. 1 of the Implementing decision).
What documents?
– The right of access applies to
all documents held by the Commission (Art. 2(3)),
i.e. not only those
drawn up by it but
also those received from third parties and in
its possession, in all areas of activity of the EU,
whatever the medium1.
1 The Regulation (Art. 3) defines a document as "any content produced or received by the
Commission and its departments, concerning a matter relating to the policies, activities and
decisions falling within the institution's sphere of responsibility in connection with its official
duties and whatever its medium - written on paper or stored in electronic form or as a sound,
visual or audiovisual recording";
3
– This also includes
e-mails. For instance: official exchanges between the Commission
and outside organisations, institutions or businesses are Commission documents
within the meaning of the Regulation, if they constitute an essential part for a given
file. This can also include e-mails which we receive only in copy (
for example, an
exchange between DG Development and outside organisations, where we are in copy.
In such a case we would contact DG Development prior to releasing the documents).
This highlights the importance of having an effective filing system for your e-mails and
having important correspondence registered in ARES.
–
No category of documents is excluded a priori from the right of access. This
includes
classified documents2. Each application for access, and each requested
document, must be examined thoroughly,
case by case. This would include, for
example, responses to public consultations or questionnaires, records of meetings with
third parties, etc.
–
The right of access applies to existing documents. This may sound obvious, but
it means that the Regulation does not require us to create documents to meet a given
request (although we do normally provide lists of meetings or documents covered in a
request) nor to reply under the Regulation to requests for information rather than
documents per se.
Requests for information should be handled under the Code
of
Good
Administrative
Behaviour
3
(see:
http://ec.europa.eu/transparency/code/_docs/code_en.pdf).
–
Existing documents are under no circumstances to be modified to satisfy a
request, other than masking the parts that are covered by the exceptions, if relevant,
and information that does not fall under the scope of the request.
Exceptions (Article 4 of the Regulation)
– Access to a document can only be refused :
for reasons of protection of
public interest, as regards public security, defence
and military matters,
international relations and the
financial, monetary or
economic policy of the Community or a Member State (Art. 4(1)(a));
for reason of
protection of privacy and integrity of individuals in accordance
with Community legislation on protection of personal data4 (Art. 4(1)(b));
2 Documents classified as "sensitive" (top secret, secret or confidential according to the rules of
Commission Decision 2001/844) are not excluded from the scope of the Regulation. However,
there are specific rules as to the handling of such requests: they must be handled by
authorised persons, using protected procedures (Art. 9). In addition, a decision by the
Commission to declassify a document is required before transmission can take place – this is a
relatively straightforward process. DG Trade rarely handles such sensitive documents, but the
issue of access to documents classified as "Restreint UE" does arise from time to time and
again, in the event of its release, the document must be declassified before it is shared with
the person making the request
3 Published in OJ L 267 of 20.10.2000
4 Regulation (EC) No 45/2001 of the European Parliament and the 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, OJ L 8, 12.1.2001,
p.
1,
available
at
http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:008:0001:0022:en:PDF
4
for reasons of
protection of commercial interests (including intellectual
property), court proceedings and legal advice, investigations; unless there is an
overriding public interest in disclosure (Art. 4(2));
for reasons of "
decision making", which includes negotiating processes, (Art.
4(3)), i.e. for :
1) documents 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;
2) documents containing opinions for internal use as part of deliberations and
preliminary consultations within the Commission
even after the decision has
been taken if disclosure of the document would seriously undermine the
institution's decision-making process. However please note that following the
My Travel 5 judgment it will be extremely difficult to protect an internal
document even after a final decision has been adopted.
unless there is an overriding public interest in disclosure.
– A refusal to disclose a document on the basis of the exceptions must be justified on a
case-by-case basis according to the document's
content and not its status. A refusal,
which fails to give the reasons on which it is based, could give rise to a complaint on
the grounds that the Commission is not meeting its commitments with regard to
transparency (see Art. 2 of the Implementing decision).
– Nb: Notwithstanding the exceptions foreseen above there is a
public interest test
which applies in relation to the exemptions foreseen in Arts. 4(2) and 4(3): when
disclosure of a document or parts of it would undermine the protection of commercial
interests; court proceedings and legal advice; investigations; or serious harm the
decision-making process; a refusal is justified unless there is an overriding public
interest in disclosing the information concerned6.
–
Time-limit: the exceptions only apply for the period during which protection is
justified, on the basis of the content of the document, with a maximum limit of 30
years. However, this limit does not automatically apply in the case of documents
covered by exceptions relating to privacy or commercial interests and in the case of
sensitive documents where exceptions can continue to apply after this period (Art.
4(7)).
– If information contained in a document has already been transmitted to a large
number of people or put onto an institution web site, a refusal would not be justified,
even if the document was initially intended for internal use. However, the Court has
recently recognised that a document is not put in the public domain simply by its
release to a limited number of recipients.7
– Any
refusal to grant access
must be based on one, or more, of the exceptions in
the Regulation. In case of refusal to grant access, the
applicant is informed of the
type of documents or information withheld and the
reasons for the refusal. The
5 Judgment in
Kingdom of Sweden v European Commission and MyTravel Group plc, Case C-
506/08 P, EU:C:2011:496.
6 Judgment in
Kingdom of Sweden and Maurizio Turco v Council, Joined cases C-39/05 and C-
52/05, EU:C:2008:374.
7 Judgment in
Stichting Corporate Europe Observatory v Commission, C-399/13 P,
EU:C:2015:360.
5
reply is usually accompanied by a list of all the documents which have been identified
as falling within the applicant's request – including those which have been withheld.
Even in case of complete refusal, the reply should indicate at least the type of
documents identified (and the reason why access is refused). The list should contain
for each of the documents identified: a description of the document including dates
and subject matter, the ARES (or BASIS) reference number, and a mention of the
legal basis pursuant to the Regulation under which the document, or part of it, are
withheld.
– If only part of the document requested is covered by one or more exceptions, the
other parts of the documents must be disclosed ("
partial release", Art. 4(6) – see
below), unless it is considered that the document makes up an integral whole and it is
not possible to separate out specific parts, or doing so would represent a
disproportionate burden.
–
Refusals must effectively be based on the legal exceptions, explaining in
sufficient detail why the release of the information would "specifically and effectively"
undermine the interest foreseen in the relevant exception8.
Partial release of documents
– Under certain conditions, documents can be partially released.
– There are two different situations to distinguish however:
First, when the released document covers issues which were not mentioned in the
applicant's request, any parts that are
not relevant to the request are not
usually disclosed.
This is not a refusal to grant access in the sense of the
Regulation, nor is it an additional exception to the Regulation; rather it allows us
to reflect better the scope of the applicant's request.
For example : an applicant asked for a report related to negotiations with country
X which are contained in a report covering two other countries, only those parts
referring to country X are relevant to the request. The
other
parts
of
the
document will be replaced by the indication "[out of scope]".
Second, where only parts of a document are covered by the exceptions foreseen
in Article 4, the document must be partially released. Those parts that are
withheld are replaced in the electronic version with redactions in light grey (using
Adobe Acrobat Professional XI) and an indication in brackets of the legal basis
under Article 4 of Regulation 1049/2001 for withholding each of those parts (e.g.
for the protection of the public interest as regards international relations "[Article
4(1)(a) third indent]").
Third party documents
– Documents received from third parties "held" by the Commission are
subject to the
Regulation.
– There are no
specific exceptions for third party documents other than those of Art.
4(1), (2) and (3),
i.e. the exceptions under Article 4 apply to Commission documents
and to third party documents.
8 Judgment in
Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039, paragraphs 51-52.
6
– It is
for the Commission to decide whether a third party document can be disclosed
or not. It does not have an obligation to consult a third party, except when there is a
doubt as to whether the exceptions of Article 4(1) and 4(2) apply, in which case the
third party shall be consulted.
At the initial stage, the practice is to accept the third party’s objection, and we
can state that the third party opposes the release of the document. However, we
need to provide a reasoning to explain why the document is withheld based on
that provided by the third party.
In practice, it is rare for DG Trade to consult a third party regarding release. As a
matter of good practice we nonetheless inform correspondents of the
Commissioner that their letters and the Commissioner's replies are to be released.
– When a third party is consulted, it should be given at least 5 working days to reply. In
the case of third party governments those contacts can sometimes be facilitated by
the EU Delegation.
– In the confirmatory stage if the Commission intends to disregard the third-party
author's refusal to disclose a document (because their ground for refusal was not
based on Art. 4, or because, in the Commission's view, none of these grounds apply),
it must inform the author 10 working days before releasing the document. The
deadline for reply may then need to be extended.
– The author can bring an action before the General Court requesting the suspension of
the Commission's decision and the deadline (see Art. 5 of the Implementing decision).
Note that
DG Trade practice is that:
When the third party is a third country, we will normally consult
them. If they refuse that access is given, we will in any case take
our own view at the documents identified and decide on the basis of
the content of the documents whether the exceptions in the
regulation apply. However, a third country request not to disclose
will have a bearing on our assessment of the possible impact of any
release on our relations with them, which could give rise to
concerns under Article 4(1)(a) (international relations).
– Documents originating from
Member States can be treated in the same way as the
"third-party" category.
– Documents originating from
other Institutions are also treated as third-party
documents, but they are always consulted. Trade A3 will take care of the consultation
in such cases on the basis of the Memorandum of Understanding in this area.
Processing of applications and time limits
– Applications for access must be
handled promptly. Incoming requests are registered
by the Secretariat General (SG) or Trade A3. An acknowledgment of receipt must be
sent to the applicant, either by the SG (in case of applications via the Europa website)
or by Trade A3, if the request is directly addressed to DG Trade. The default deadline
for the reply is
fifteen working days.
– If a request is addressed to a Unit other than Trade A3, Trade A3 must be promptly
informed, so it can register the application and send an acknowledgment of receipt.
7
–
All replies – even positive ones –
should be checked with Unit A3 before they are
sent out to ensure coherence of our overall approach.
–
How to identify an application for access to documents? Most applications carry
a reference to Regulation 1049/2001, but there is no obligation for a request to
mention the Regulation. Any request that refers to documents should therefore be
considered as an application within the meaning of Regulation 1049/2001. In case of
doubt, Trade A3 should be consulted. This is important as failure to "recognize" an
access to documents request may lead you to forget to indicate means of redress if a
full or partial refusal were to be given.
– Applicants are not obliged to state the reasons for their application, nor give details of
organisations they may represent.
– If an application is
insufficiently clear, we usually ask the applicant for a clarification
or a narrowing down of the request, ask for clearer parameters for the period covered
by the request, etc. (and if necessary, offer to help the applicant in defining these). In
such a case the 15 working days term only starts when the request is clarified (Art.
6(2) of the Regulation and Art. 2 of the Implementing decision). The request for
clarification should be discussed with, and sent out via, Trade A3.
– In
exceptional cases, e.g. in case of an application covering a very long period or for
a very large number of documents, this time limit can be
extended by 15 extra days.
– However, for
complex requests (involving numerous documents, concerning several
different units and/or requiring consultation of another DG and/or of third parties),
Art. 6.3. of the Regulation allows the Commission the possibility to confer with the
applicant, with a view to finding a fair solution.
The solution under Article 6(3)
may concern the number and content of the documents applied for, but not,
in principle, the timeframe for dealing with the initial request. In any case, the
institution is not empowered to extend unilaterally the time limits laid down in
Regulation 1049/2001.9 However, the applicant may agree to withdraw explicitly or
implicitly some parts of his or her initial request, to be reintroduced or deemed to be
reintroduced at a later stage or stages, and to be dealt with in a staggered way
according to the time-limits applicable to those later requests. In all cases, Trade A3
will keep the applicant regularly informed of the progress.
– Documents are made available to the applicant in the form of a
copy in electronic
format and, in exceptional cases (if there is a very large volume of material or if
documents are difficult to handle), the DG concerned can offer the possibility for the
applicant to consult the documents on the spot.
– For complex requests, particularly, for which Art. 6.3 is invoked, you may want to
consider releasing documents in
packages or batches with the agreement of the
applicant. Documents to be fully released should be sent first and as rapidly as
possible.
Remedies
– Refusal to provide access to all or part of a requested document gives the applicant
the right to submit a
confirmatory application to the Secretary General within 15
working days of receiving DG Trade's reply.
9 Judgment in
Guido Strack v Commission, C-127/13 P,
EU:C:2014:2250, paragraphs 25-28.
8
–
Failure to reply within the 15-day period for the initial request or any unannounced
extension of that period is
equivalent to refusing access, giving the applicant the
right to make a "confirmatory application" to the Secretary-General, as is the failure to
give reasons for refusing access to an identified document.
– In case of a refusal being upheld within the reply to a confirmatory request, or a
failure to reply by the SG within the prescribed deadlines, the applicant is entitled to
bring an action in the
General Court or to make a complaint to the
Ombudsman.
For further info on the Secretariat General's role in access to documents, see the SG's
Access to Documents website:
http://www.cc.cec/home/dgserv/sg/docinter/index_en.htm
II. ACCESS IN RELATION TO PARTICULAR TYPES OF DG TRADE
DOCUMENTS
– The basic rule is that
every document has to be assessed on a
case by case basis,
on the basis of its
content. No single type of DG Trade document is automatically
excluded from the right to access.
Negotiating directives
– Negotiating directives as such are not necessarily excluded. A difference, however,
needs to be made between final negotiating directives incorporated in the Council
decision authorising the opening of the negotiations of international agreements, and
the draft negotiating directives as included in the Commission recommendation to the
Council.
– As regards Council decisions, the recent Communication of the Commission entitled
"Trade for All: Towards a more responsible trade and investment policy" provides that
the Commission will in relation to future decisions of the Council authorising the
opening of negotiations of free trade agreements, invite at launch the Council to
disclose the negotiating directives immediately after their adoption.10 It is therefore
expected that more and more of the Council decisions authorising negotiations and the
associated negotiating directives will be made public on a case-by-case basis by the
Council itself on its website. As regards existing Council authorisations relating to
negotiations launched before the adoption of the above-mentioned Communication,
the Commission favours in principle their publication. Yet it is for the Council to decide
on the basis of a case-by-case assessment, whether to publish these documents.
– As regards the Commission recommendations incorporating the draft versions of the
negotiating directives, we have found until now that a refusal of access has been
justified on the basis of the exceptions provided for the protection of the decision-
making process without a supervening public interest, and of international relations.
This is because, in the event that the Council published the final version of the
negotiating directives, the disclosure of their draft version as proposed by the
Commission could allow a comparison, revealing the shifts of position in the EU
decision making process and the internal debates of the Council, thus conferring an
undue advantage to the EU negotiating partners in those or other negotiations
10 See Commission Communication on
"Trade for All: Towards a more responsible trade and
investment
policy",
p.
19,
available
at
http://trade.ec.europa.eu/doclib/docs/2015/october/tradoc_153846.pdf.
9
covering similar areas. 11 But this does not mean that this will necessarily always be
the case: the assessment must be based on the content and context of those
negotiations. (For instance, when negotiations were concluded some time ago and the
agreement is being implemented there may be no reason to withhold access; on the
other hand, for example, negotiations in the context of rendez-vous clauses in the
agreement several years after a deal is applied may still be based on the original
guidelines and so they may need to be viewed in a different light). This needs to be
examined on a case-by-case basis.
– The
Explanatory Memorandum and the
recommendations of any decision to
authorise the opening of negotiations needs to be looked at carefully on a case-by-
case basis: parts of these texts may be factual and already be public knowledge and
therefore are often made available, while other parts may be covered, for example, by
exceptions12.
Negotiating documents
– Negotiating positions and documents exchanged between the Commission and
negotiating partners, as well as information notes to the College on the state of play of
negotiations are not automatically excluded. They can under certain circumstances be
covered by the exceptions of Art. 4(1) (protection of international relations) and Art.
4(3) (documents for internal use relating to a matter where the decision has not yet
been taken), but this has to be assessed on a case-by-case basis for each document.
– In particular, it is to be noted that in the recent Communication on "Trade for All", the
Commission has committed to, during negotiations, extend the TTIP practices of
publishing EU texts online for all trade and investment negotiations and make it clear
to all new partners that negotiations will have to follow a transparent approach.13
– In case of documents originating from negotiating partners, the exception of
"international relations" may apply if that country does not agree with its disclosure
(see above), and/or we may find that information contained in these documents would
harm the interests protected in the Regulation without it being in the general public
interest for them to be released.
– The
time factor may be important here. Depending on the state of advancement of
negotiations (or indeed, the fact that the negotiations have successfully closed), past
11 See Judgment in
Leonard Besselink v. Council of the European Union, T-331/11,
EU:T:2013:419, paragraph 71, where the General Court found that
"the consideration that
knowledge of the negotiating directives might have been exploited by the other parties to the
negotiations is sufficient to establish a risk that the interest of the Union as regards
international relations might be undermined."
12 Such decisions to open negotiations are normally classified on the basis of their content as
restricted documents. Where access is being given to parts of a Restreint UE document,
Directorate A in DG Trade asks the SG to declassify those parts of the document if the
documents exist under a "COM" code. For documents under a SEC code, Directorate A
declassifies relevant parts and informs the SG which in turn updates the Commission's SG Vista
database and the document register. If no particular code applies to the document, DG Trade
as the author service can decide to declassify the relevant parts.
13 See Commission Communication on
"Trade for All: Towards a more responsible trade and
investment
policy",
p.
19,
available
at
http://trade.ec.europa.eu/doclib/docs/2015/october/tradoc_153846.pdf.
10
positions may already be publicly known in which case the impact of disclosure on
decision-making or on our international relations may be reduced.14
– On the other hand, possibility of maintaining confidentiality beyond the 30 years time
- limit (see above) provided for in Art. 4.7 for sensitive documents may in certain
exceptional circumstances also apply to negotiating documents.
Reports and minutes of meetings
–
Reports or minutes of meetings are not excluded: a case-by-case assessment
must be made as to whether the exceptions apply to part(s) or the whole of the
document. The full document must be considered, including comments, summaries,
follow up points etc.
–
For the reports of meetings involving
the Commissioner, Trade A3 will check with
the Cabinet based on your recommendation.
Content of documents: business secrets and names of persons
–
Business confidential information that industry shares with us may fall under the
protection of commercial interests; however, only those parts that fall under the
exception in question can be withheld; the other parts of the report, minutes or
correspondence would be potentially released. Obviously, we will not always be in a
position to determine whether something is a "business secret", in which case it is
better to cross check with the company concerned, but it will be for the Commission to
make the final assessment.
The name of the company, date of the meeting and factual elements and views
expressed would normally be released, unless we can establish that releasing that
information could affect their business interests, for example, vis-à-vis the authorities
of a third country.
–
Names of individuals (e.g. participants in a meeting, signatories to a letter etc…)
are normally released where the person holds a public function and acts within his
normal functions, unless it appears from the context that disclosure would be harmful.
In that case, the person will be consulted15. The current approach recommended by
the SG in relation to names and functions of Commission staff is to grant access to the
names and functions of Commissioners and their cabinet members and staff in senior
management positions starting from the Director level (included). This access is
exceptionally extended to the names and functions of staff not occupying any senior
management position, if the need thereto has been clearly substantiated by the
applicant and there are no reasons to assume that the legitimate rights of the
individuals concerned might be prejudiced.16
14 In this respect, the recent Communication on
"Trade for All: Towards a more responsible trade
and investment policy" provides that after finalising the negotiations, the Commission will
publish the text of the agreement immediately, as it stands, without waiting for the legal
revision
to
be
completed.
See
http://trade.ec.europa.eu/doclib/docs/2015/october/tradoc_153846.pdf, p. 19.
15 Art. 4(1)(b) of Reg. 1049/2001, Arts. 8b and 18 of Reg. 45/2001 and Court jurisprudence
(Judgment in
Commission v The Bavarian Lager, C-28/08 P, EU:C:2010:378).
16 As required by Article 8(b) of Regulation 45/2001.
11
Industry consultations and other consultations
– Replies to public consultations are made publicly available on line, in line with
Commission practice. As regards more specific consultation exercises, the right of
access applies to documents held by the Commission including those received from
third parties. Hence,
replies to industry consultations, or consultations of other
stakeholders (for instance in the context of Market Access cases, preparations of FTA
negotiations, identification of offensive and defensive interests in negotiations, etc…)
fall under the Regulation and would, in principle, also be released.
– Such replies must be considered on a case-by-case basis, – but they may –
particularly in the case of responses from business - be covered by the
exceptions,
and most notably
commercial interests (Art. 4(2), first indent). This exception can
potentially apply to sensitive information provided in such consultations, and in cases
where the disclosure of the fact that a given company has participated in a
consultation and/or given specific information to the Commission could harm their
interests or their competitive position in the EU or in third country. However, the
bottom line is that third parties participating in consultations need to be aware that
documents and information shared with the Commission may fall under the access to
documents rules.
You may wish to add a disclaimer to any consultation document or
questionnaire where the results are not intended to be made public,
explaining that contributions received are subject to EU rules on
public access to documents and the exceptions provided within
those rules.
Dispute settlement procedures and legal opinions
–
Legal opinions on potential cases brought (compatibility of third-country measures
with WTO rules or bilateral rules) or defended in the WTO (compatibility of Community
measures with WTO rules or bilateral rules), may fall under the exception of Art. 4(2)
only if it originates from the
Legal Service, would effectively harm the protection
of
legal advice and there is no overriding public interest17
. Notes giving opinions of the
DG Trade Legal Unit cannot be excluded automatically on the basis of Art. 4(2).
– However, notes to prepare the
decision on whether or not to bring a WTO case,
or relating to
cases under way or concluded at the WTO may fall under the
exceptions linked to court proceedings (Art. 4(2) - and/or decision-making (Art. 4(3)).
– Submissions received from
other parties to a dispute at the WTO would need to be
assessed on a case by case basis, but may well fall under the exception in Art. 4(1)(a)
third indent (international relations) since they are governed by Article 18 of the
WTO's Dispute Settlement Body (DSB) Regulation, which obliges us to maintain
confidentiality of proceedings.
Staff and budget issues
– Such documents must be considered on a case by case basis, but, based on
experience, are likely to be partly covered by the
exception in Art. 4(1)(b) (protection
of privacy), partly by the exceptions in Art. 4(3) (documents for internal use relating
to a matter where the decision has not yet been taken), and in very specific cases
17 See Judgement in
Kingdom of Sweden and Maurizio Turco v Council, Joined cases C-39/05 P
and C-59/05 P, EU:C:2008:374.
12
where retroactive transmission could seriously undermine the decision-making
process.
–
Tender dossiers must be considered on a case by case basis, but, based on
experience, are likely to be considered in relation to the exception in Art. 4(2)
(protection of commercial interests including intellectual property) unless there is an
overriding
public (and not private) interest, and/or partially by Art. 4(1)(b)
(protection of privacy) such as names, resumes, etc. Separate rules on tender files
apply (see rules of DG for budgetary affairs).
Anti-dumping, anti-subsidy, safeguard and Trade Barriers Regulation
proceedings
– The documents received in this context may be covered by the exception in Art. 4(2)
(protection of commercial interests of a natural or legal person court proceedings and
legal advice, and of the purpose of investigations) and partly by the exception in Art.
4(1)(a) third indent (protection of public interest as regards international relations),
on the basis of their content.
– Information received from a third-party during an investigation is covered by the
exception in Art. 4(2) which includes all the information received pursuant to
regulations or decisions in the field of trade defence instruments throughout
proceedings initiated in accordance with the basic Regulations in this field, and until
the conclusion of any court proceedings and/or dispute settlements at the WTO which
may result from these administrative procedures. This corresponds to the practice
adopted since 1994. The exception in Art. 4(3), first sub-paragraph, applies to internal
or preparatory documents produced in the course of proceedings. The exception in
Article 4(3), second sub-paragraph, may be applied to internal or preparatory
documents produced in the course of proceedings which contain policy positions of a
horizontal nature and are not case-specific. Information received from a third-party
during an investigation is covered by the exception in Art. 4(2) since it is governed by
Art. 6 of the WTO Anti-dumping Agreement, which obliges us to maintain
confidentiality.
N.B.: in the recent Communication "
Trade for All: Towards a more responsible
trade and investment policy" the Commission announced that transparency will be
increased also in the area of trade defence. In particular, the Commission
committed from the first half of 2016 onwards, to provide more transparency
vis-
à-vis the general public, for instance in relation to the publication of the non-
confidential version of complaints and requests for reviews of existing measures,
including expiry reviews. The Commission also promised to explore initiatives to
further increase transparency in the medium term, such as the possibility of
improving access to anti-dumping and anti-subsidy investigation files by the legal
representatives of interested parties and extending access to the non-confidential
file to the general public.
– Under Art. 4(7), even after a proceeding is terminated, the exception can continue to
apply to documents that might disclose business secrets, investigation practices or
methods, or personal positions that could jeopardise the internal decision-making
process, which are not to be disclosed.
– «Horizontal» documents (policy notes, procedural or investigation manuals) are
closely linked to investigations and
can be included in the general category of
documents preparatory to a decision, but are not necessarily exempted from the
Regulation: they have to be examined on a case-by-case basis.
13
– The same holds for all documents relating to the EU's defence against the actions of
third countries. They can remain protected even after the initiation of court
proceedings or dispute settlement and, if necessary, even longer after these
procedures under one of the statutory exceptions in force (case-by-case decision).
– Where TDI cases are pending before the General Court/Court of Justice, the file
related to that case is considered to fall fully under the exception in Article 4(3),
second indent.
–
For the EU's trade barriers regulation:
the same type of approach as identified
above is likely to apply.
Non-public Commission documents put on third party websites
– Requests for non-public documents which have been leaked to the public, or which
have been put on web-sites by third parties, must be handled as if the documents
were not yet public i.e. a case by case assessment must be made. Nevertheless, the
fact that the document is already legitimately or otherwise in the public domain will be
a factor in assessing whether their release under the Regulation would have any
consequences beyond those already caused by the leak of the document, and hence
whether the exemptions in the regulation could still apply.
Studies
– Studies carried out for the Commission by an external consultant should be treated in
the same way as any internal Commission document. The letter accompanying a
positive reply to a request for access to a study must specify that the study was
carried out by independent experts and that the Commission cannot be held
responsible for its content.
III. PRACTICAL IMPLICATIONS FOR DG TRADE
Drafting of documents
– Practice shows that when writing a report, you should be aware of how statements
may look if taken out of context. For this reason you should limit giving personal as
opposed to professional opinions.
Filing and registration of documents
– Given the very short time frames in which documents have to be found and the
request has to be handled, it is important that documents can be easily identified and
found. Hence the importance of proper filing and registration of documents, according
to the rules and guidelines of the Commission and of DG Trade (see:
http://www.trade.cec.eu.int/intra/how/docmanag/index.cfm).
– The principal tools are likely to be ARES (the document management database),
BASIS (where records / reports of meetings for briefings requested via the BASIS
database can be stored), Outlook (to establish dates of possible meetings) and the
unit's own filing system. Trade A3 liaises with the Commissioner's cabinet regarding
requests extending to the Commissioner's or Cabinet's meetings and correspondence.
14
–
Registration of key documents (incoming and outgoing letters, e-mails, notes) is
done
through
the
ARES
system.
See
http://www.trade.cec.eu.int/intra/how/docmanag/doc.cfm?cat=74
–
It is up to each Unit to ensure that its current filing and archiving system is
reliable so that it is easy to find documents in the short time-limits laid down
by the Regulation.
Internal handling of requests for Access to Documents in DG Trade
– Management of document access is coordinated by
Trade A3 (functional mailbox
TRADE ACCES DOCUMENTS), which will pass on applications to the units concerned,
collect the documents selected by them and advise, if necessary, on the proper
application of the Regulation. Trade A3 ensures consistency of DG Trade practices as
regards access to documents, maintains contacts with the SG service in charge of
access to documents and keeps track of case law and Ombudsman Decisions on
access to documents.
–
Replies are prepared by the units in charge of the relevant file (on the basis of
the available templates18). Heads of Units must ensure
that these replies meet the
requirements of the Regulation and that the necessary justifications are set out clearly
in cases of refusal or partial refusal of access.
Replies releasing documents in full may be sent out directly by the unit
concerned, after having checked with Trade A3 prior to sending these out.
Replies refusing access to all or parts of the requested documents, or confirming
that no relevant documents exist, must be signed by the Director-General, as well
as positive replies that are part of a wider request from the same applicant which
includes some negative answers. The signataire should go via the relevant
Director and Trade A3.
If a longer deadline is needed because of the time needed to identify and
review a large number of documents, to consult third parties and/or coordinate
with different teams, Trade A3 must be informed so that it can update the
applicant.
– In accordance with the Regulation, which provides for the protection of the
Commission's copyright (Article 16), the draft reply shall contain certain dissemination
disclaimers
(see
SG
template
for
positive
replies
available
at
https://myintracomm.ec.europa.eu/sg/docinter/Pages/tools.aspx)
– The
Secretariat General is in charge of replying to confirmatory applications. In this
case, Trade A3 is consulted and provides elements (including additional factual
justifications for non-disclosure and copies of all relevant documents) for reply to the
SG on the basis of the elements provided by the relevant unit, which is always
consulted before replying to the SG.
– Trade A3 has established a network of "Access to Documents" contact points in the
relevant units, who can help follow requests and provide advice on specific cases.
***************
18 See
https://myintracomm.ec.europa.eu/sg/docinter/Pages/tools.aspx
15