Ref. Ares(2017)3468797 - 10/07/2017
EUROPEAN COMMISSION
Directorate-General for Trade
The Director General
Brussels,
trade.dga2.e.1(2017)2393973
By registered letter with acknowledgment of
receipt
Mr Anton Peene
Renaat de Rudderlaan 6,
8500 Kortrijk
Advance copy by email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – Ref. GestDem No 2016/6348
Dear Mr Peene,
I refer to your application of 31 October 2016 in which you make a request for access to
documents in accordance with Regulation (EC) No 1049/20011 (“Regulation
1049/2001”). You sent your request to the Secretariat General of the Commission and,
after your clarifications, the request was registered on 11 November 2016 under the
above mentioned reference number for DG TRADE.
Please accept our apologies for the delay in answering to your request, which is mainly
due to a high number of requests for access to documents being processed at the same
time by DG TRADE and our need to consult with the Canadian authorities on the release
of documents which originate from their side.
1.
SCOPE OF YOUR REQUEST
You would like to receive access to "
all correspondence (including emails), agendas,
minutes of meetings and any other reports of such meetings between
officials/representatives of the European Commission (the Secretariat General and all
other DGs, including all Commissioners, their cabinets and the Commission Presidents
José Manuel Barroso (former) and Jean-Claude Juncker and their cabinets) and the
following individuals:
1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 20 May 2001
regarding public access to European Parliament, Council and Commission documents, OJ L 145,
31.5.2001, p. 43.
Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11.
-Chrystia Freeland (current Canadian Minister of International Trade)
-Ed Fast (Canadian Minister of International Trade from 2011 till 2015)
-Peter Van Loan (Canadian Minister of International Trade from 2010 till 2011)
-Stockwall Day (Canadian Minister of International Trade from 2008 till 2010)
(between May 2009 and October 2016).
On 10 November 2016 you clarified your request as follows: "
the documents that we are
requesting to be limited to documents/communications (as specified) related to the EU-
Canada Comprehensive Economic and Trade Agreement (CETA); -To limit the
European Institutions that fall within the scope of our request to the SG, DG TRADE,
DG SANCO/SANTE, DG ENV, DG AGRI and DG ENTR/GROWTH (including all
Commissioners, their cabinets and the Commission Presidents José Manuel Barroso
(former) and Jean-Claude Juncker and their cabinets); -To maintain our time frame
(since our request is limited to specific individuals, specific Commission departments and
a specific topic)."
In response to your clarification, we have identified correspondence consisting of
15 documents which are listed for ease of reference in Annex I. For each of them, the list
provides a description and indicates whether parts are withheld and if so, under which
ground pursuant to Regulation 1049/2001. Copies of the accessible documents are
enclosed.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
In accordance with settled case law2, when an institution is asked to disclose a document, it
must assess, in each individual case, whether that document falls within the exceptions to
the right of public access to documents set out in Article 4 of Regulation 1049/2001. Such
assessment is carried out in a multi-step approach. First, the institution must satisfy itself
that the document relates to one of the exceptions, and if so, decide which parts of it are
covered by that exception. Second, it must examine whether disclosure of the parts of the
document in question pose a “
reasonably foreseeable and not purely hypothetical” risk of
undermining the protection of the interest covered by the exception. Third, if it takes the
view that disclosure would undermine the protection of any of the interests defined under
Articles 4(2) and 4(3) of Regulation 1049/2001, the institution is required
"to ascertain
whether there is any overriding public interest justifying disclosure"3
.
2 Judgment in
Sweden and Maurizio Turco v Council, Joined cases C-39/05 P and C-52/05 P,
EU:C:2008:374, paragraph 35.
3
Id., paragraphs 37-43. See also judgment in
Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039,
paragraphs 52 and 64.
2
In view of the objectives pursued by Regulation 1049/2001, notably to give the public the
widest possible right of access to documents4,
"the exceptions to that right […] must be
interpreted and applied strictly"5
.
Having examined the requested documents under the applicable legal framework, partial
access is granted to all other documents except for documents 8, 9 and 10 which are fully
withheld.
Document 4 is fully disclosed, with the exception of one paragraph which is out of the
scope of your request. Some parts of documents 3, 5, 6, 7, 11, 13 are also out of the scope of
your request. They all have been redacted and clearly marked in the enclosed documents.
In addition, in documents 1, 2, 3, 4, 5, 6, 7, 11, 12, 13, 14 and 15 personal data have been
redacted, pursuant to article 4(1)(b) of Regulation 1049/2001 and in accordance with
Regulation (EC) No 45/20016 ("Regulation 45/2001").
In document 7, in addition to personal data protected under article 4(1)(b) of Regulation
1049/2001, additional information was redacted in accordance with article 4(1)(a) third
indent (protection of the public interest as regards international relations)
I regret to inform you that access is not granted to documents 8, 9 and 10 as they are fully
covered by the exceptions of articles 4(1)(a) third indent and article 4(3) first subparagraph
(protection of the institution's decision-making process).
The reasons justifying the application of the exceptions are set out below in sections 2.1, 2.2
and 2.3. Section 3 contains an assessment of whether there exists an overriding public
interest in the disclosure.
2.1
Protection of the public interest as regards international relations
Article 4(1)(a) third indent, of Regulation 1049/2001 provides that
“[t]he institutions
shall refuse access to a document where disclosure would undermine the protection of:
the public interest 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
4 Regulation (EC) No 1049/2001, recital (4).
5 Judgment in
Sweden v Commission, C-64/05 P, EU:C:2007:802, paragraph 66.
6 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.
3
appreciation".7 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".8
The General Court found that
"it is possible that the disclosure of European Union
positions in international negotiations could damage the protection of the public interest
as regards international relations" and
"have a negative effect on the negotiating
position of the European Union" as well as
"reveal, indirectly, those of other parties to
the negotiations".9 Moreover,
"the positions taken by the Union are, by definition, subject
to change depending on the course of those negotiations and on concessions and
compromises made in that context by the various stakeholders. The formulation of
negotiating positions may involve a number of tactical considerations on the part of the
negotiators, including the Union itself. In that context, it cannot be precluded that
disclosure by the Union, to the public, of its own negotiating positions, when the
negotiating positions of the other parties remain secret, could, in practice, have a
negative effect on the negotiating capacity of the Union".10
Documents 8, 9 and 10 and one passage in document 7 contain information exchanged with
the Canadian Government in order to promote the negotiation of specific aspects of the
Comprehensive Economic and Trade Agreement between the EU and Canada. This
information represents comments and issues raised by both the EU Commissioner for Trade
and the Canadian Minister for Trade in the exchanges during the negotiations.
The success of trade negotiations depends to a large extent on the protection of
objectives, tactics and fall-back positions of the parties involved. In order to ensure the
best possible outcome in the public interest, the EU needs to retain a certain margin of
manoeuvre to shape and adjust its tactics, options and positions in function of how the
discussions evolve in its trade negotiations. Exposing internal views and considerations
would weaken the negotiating capacity of the EU, reduce its margin of manoeuvre and be
exploited by our trading partners to obtain specific results, thereby undermining the
strategic interests of the EU and consequently, the protection of the public interest as
regards international relations.
It should be noticed that these documents reveal, directly or indirectly, the position of
Canada. Such disclosure is likely to upset the mutual trust between the EU and Canada and
thus undermine their relations. In this context, after consulting on the release of the
documents, the Canadian authorities confirmed that they could not agree to disclose the
withheld documents under Canadian rules on access to documents.
7 Judgment in
Sison v
Council, C-266/05 P, EU:C:2007:75, paragraph 36
8 Judgment in
Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039, paragraph 63.
9
Judgment in
Sophie in’t Veld v Commission, T-301/10, EU:T:2013:135, paragraphs 123-125.
10
Id., paragraph 125.
4
Even if the information contained in these documents was related to the agreement with
Canada, there is a reasonably foreseeable risk that its public disclosure would undermine
and weaken the position of the EU in its ongoing trade negotiations with other third
countries. Indeed, the information that the EU’s trading partners may collect on the basis
of the public disclosure of certain detailed positions, concerns, views and strategies of the
Commission and of its Member States may allow them to extract specific concessions
from the EU in the context of other negotiations, thus to the disadvantage of the EU’s
international relations, and the interests of its citizens, consumers and economic
operators. Third countries may also anticipate or deduce certain negotiating position of
the EU ahead of the trade talks on the basis of the information contained in the withheld
documents and passages.
It may also jeopardise the mutual trust between the EU and other trading partners as they
may fear that in the future their positions would be exposed and they may as a result
refrain from engaging with the EU. Negotiating partners need to be able to confide in
each other's discretion and to trust that they can engage in open and frank exchanges of
views without having to fear that that these views and positions may in the future be
publicly revealed. 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"11
.
2.2
Protection of privacy and integrity of the 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".
The applicable legislation in this field is 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. In this respect, the Court of Justice has ruled that
"where an application based on Regulation 1049/2001 seeks to obtain access to documents
containing personal data" "the provisions of Regulation 45/2001, of which Articles 8(b) and
18 constitute essential provisions, become applicable in their entirety"12.
Article 2(a) of Regulation 45/2001 provides that
"'personal data' shall mean any
information relating to an identified or identifiable natural person […]". The Court of
Justice has confirmed that
"there is no reason of principle to justify excluding activities of a
professional […] nature from the notion of 'private life'"13 and that
"surnames and
11 Judgment in
Sophie in’t Veld v European Commission, T-301/10, EU:T:2013:135, paragraph 126.
12 Judgment in
Guido Strack v Commission, C-127/13 P,
EU:C:2014:2250, paragraph 101; see also
judgment in
Commission v Bavarian Lager, C-28/08 P, EU:C:2010:378, paragraphs 63 and 64.
13 Judgment in
Rechnungshof v Rundfunk and Others, Joined cases C-465/00, C-138/01 and C-139/01,
EU:C:2003:294, paragraph 73.
5
forenames may be regarded as personal data",14 including names of the staff of the
institutions.15
According to Article 8(b) of this Regulation, personal data shall only be transferred to
recipients if they establish
"the necessity of having the data transferred" and additionally
"if there is no reason to assume that the legitimate interests of the data subjects might be
prejudiced". The Court of Justice has clarified that
"it is for the person applying for access
to establish the necessity of transferring that data".16
All documents contain initials and signatures that are redacted for privacy protection. In
line with the Commission's commitment to ensure transparency and accountability, the
names of the Commissioners and the Director-General for Trade are disclosed. Also the
names of the Canadian ministers can be disclosed.
I note that you have not established the necessity of having these redacted personal data
transferred to you. Moreover, it cannot be assumed, on the basis of the information
available, that disclosure of such personal data would not prejudice the legitimate
interests of the persons concerned. Therefore, these personal data shall remain
undisclosed in order to ensure the protection of the privacy and integrity of the
individuals concerned.
2.3
Protection of the institution's decision-making process
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 jurisprudence of the EU Courts has also recognized that
"the protection of the decision-
making process from targeted external pressure may constitute a legitimate ground for
restricting access to documents relating to the decision-making process"17 and that the
capacity of its staff to express their opinions freely must be preserved18 so as to avoid the
risk that the disclosure would lead to future self-censorship. As the General Court put it, the
result of such self-censorship
"would be that the Commission could no longer benefit from
the frankly-expressed and complete views required of its agents and officials and would be
14 Judgment in
Commission v Bavarian Lager, C-28/08 P, EU:C:2010:378, paragraph 68.
15 Judgment in
Guido Strack v Commission, C-127/13 P,
EU:C:2014:2250, paragraph 111.
16
Id, paragraph 107; see also judgment in
Commission v Bavarian Lager, C-28/08 P, EU:C:2010:378,
paragraph 77.
17 Judgment in
MasterCard and Others v Commission, T-516/11, EU:T:2014:759, paragraph 71
18 Judgment in
Muñiz v Commission, T-144/05, EU:T:2008:596, paragraph 89.
6
deprived of a constructive form of internal criticism, given free of all external constraints
and pressures and designed to facilitate the taking of decisions […]".19
As you may know, the decision-making process for the ratification of the agreement is still
ongoing. After the signature of the Council and the consent of the European Parliament,
CETA will enter into force provisionally, once it has also been ratified on the Canadian
side. CETA will be fully implemented once the parliaments in all Member States ratify
the agreement according to their respective domestic constitutional requirements, and
after the Council has adopted the decision on conclusion.
Documents 8, 9 and 10 contain information exchanged with the Canadian Government in
order to promote the negotiation of specific aspects of the Comprehensive Economic and
Trade Agreement between the EU and Canada. These documents contain views, opinions
and remarks of the European Commission and Canadian government that were meant for
internal use in the context of a decision-making process that led to the adoption of the text.
Disclosing the withheld documents and passages would seriously undermine the decision-
making process of the institution in this specific case, as it would reduce the free exchange
of views of the Commission by exposing views and considerations of individual staff
members to possible external manipulation, undue pressure and unfounded conclusions.
Protecting the confidentiality of certain documents allows for the actors involved in the
decision-making process to speak frankly and freely, and in this way, the Commission is
able to feed this information into its decision-making process. Reducing this degree of
protection would give rise to a risk of self-censorship of those involved, which would
deprive the Commission's deliberative process of that
"constructive form of internal
criticism, given free of all external constraints and pressures" which is
'"designed to
facilitate the taking of decisions". Ultimately, this would affect the quality of the
consultations and deliberations, and seriously undermine the Commission's decision-making
process.
3.
OVERRIDING PUBLIC INTEREST
The exception laid down in article 4(3) first subparagraph of Regulation 1049/2001
applies unless there is an overriding public interest in the disclosure of the documents.
Such an interest must, first, be public and, secondly, outweigh the harm caused by
disclosure. The Court of Justice has acknowledged that it is for the institution concerned
by the request for access to balance the particular interest to be protected by non-
disclosure of the document against the public interest. In this respect, the public interest
is of particular relevance where the institution
"is acting in its legislative capacity"20 as
transparency and openness of the legislative process strengthen the democratic right of
19 Judgment in
MyTravel v Commission, T-403/05, EU:T:2008:316, paragraph 52.
20 Judgment in
Sweden and Maurizio Turco v Council, Joined cases C-39/05 P and C-52/05 P,
EU:C:2008:374, paragraph 46.
7
European citizens to scrutinize the information which has formed the basis of a
legislative act21.
The documents withheld under article 4(3) all pertain to the domain of the executive
functions of the EU as they concern trade negotiations. In this context, the Court has
acknowledged that
“public participation in the procedure relating to the negotiation and
the conclusion of an international agreement is necessarily restricted, in view of the
legitimate interest in not revealing strategic elements of the negotiations”22.
After careful assessment, we have concluded that on balance, preserving the
Commission's decision-making prevails over transparency in this specific case. In
particular, disclosure at this stage of documents withheld under article 4(3) of Regulation
1049/2001 would undermine the possibility of achieving the best possible outcome in the
public interest. Such public interest would instead be better served by the possibility for
the Commission to complete the decision-making process in question without external
pressure.
Therefore, on the basis of the considerations made above, we have not been able to
identify a public interest capable of overriding the Commission’s decision making
process.
4.
PARTIAL ACCESS
Pursuant to Article 4(6) of Regulation 1049/2001
"[i]f only parts of the requested
document are covered by any of the exceptions, the remaining parts of the document
shall be released". Accordingly, we have also considered whether partial access can be
granted to documents 8, 9 and 10.
After a careful review, we have concluded that they are entirely covered by the
exceptions described above as it is impossible to disclose any parts of these documents
without undermining the protection of the interests identified in this reply.
***
In case you would disagree with the assessment provided in this reply, you are entitled, in
accordance with Article 7(2) of Regulation 1049/2001, 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 Secretary-General of the Commission at the following address:
21
Id, paragraph 67.
22 Judgment in
Sophie in ’t Veld v European Commission, T-301/10, EU:T:2013:135, paragraphs 120 and
181; see also Judgment in
Sophie in ’t Veld v Council, T-529/09, EU:T:2012:215, paragraph 88.
8
European Commission
Secretary-General
Transparency unit SG-B-4
BERL 5/282
1049 Bruxelles
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
Jean-Luc DEMARTY
Encl.: - List of documents;
- Released documents.
9