Ref. Ares(2017)4070668 - 17/08/2017
EUROPEAN COMMISSION
Directorate-General for Trade
The Director General
Brussels,
B2/OBP/sc (2017) 4290007
By registered letter with acknowledgment
of receipt
Ms Pia Eberhardt
c/o Corporate Europe Observatory
Rue d'Edimbourg 26
1050 Brussels
Belgium
Advance copy by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your applications for access to documents – Ref. GestDem 2017/3510
Dear Ms Eberhardt,
I refer to your request for access to documents under Regulation (EC) No. 1049/20011
("Regulation 1049/2001") dated 7 June 2017 and registered on the same date under the
above-mentioned reference number.
Please accept our apologies for the delay in providing you with this reply, which is
mainly due to a high number of simultaneous and complex requests for access to
documents being dealt with by the Directorate General for Trade of the European
Commission (DG Trade).
1.
SCOPE OF YOUR REQUEST
In your application you seek access to the following documents:
"
1) a list of meetings of DG Trade officials and/or representatives (including the
Commissioner and her Cabinet) and representatives of individual companies and/or
industry federations such as BusinessEurope, the European Services Forum (ESF), the
Federation of German Industries (BDI) and/or law firms such as Freshfields, White &
Case, Herbert Smith and Sidley, in which the EU's foreign investment policy was
discussed (since October 2015);
2) minutes and other reports of these meetings;
3) all correspondence (including emails) between DG Trade officials and/or
representatives (including the Commissioner and her Cabinet) and representatives of
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/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
companies, business associations and law firms, in which the EU's foreign investment
policy was discussed (since October 2015)" (emphasis added).
Following two exchanges of emails pursuant to Article 6(2) of Regulation 1049/2001
aiming to better define the scope of your request, you explained that the term "EU
foreign investment policy" means:
"
* EU negotiations of investment protection provisions with the US, Canada, Japan,
China, ASEAN countries, Mexico, Mercosur, and India
* the EU proposal for a Multilateral Investment Court (excluding documents, which the
Commission will publish anyways in the context of the results of the consultation on the
issue)
* the EU's role in the Energy Charter Treaty (ECT)" (emphasis added).
We would like to share with you 21 documents that fall within the scope of your request
and which concern meetings and exchanges of correspondence with the above-mentioned
companies:
(1)
an email from BusinessEurope to the Director General of DG Trade dated 8
October 2015 (Ares(2017)3772135) ("
Document 1");
(2)
the report of a meeting with Telenor held on 13 October 2015
(Ares(2017)3710773) ("
Document 2");
(3)
an email from BusinessEurope to the Director General of DG Trade dated 23
October 2015 enclosing the confederation's position paper on the European
Commission's proposal on an Investment Court System (Ares(2015)
5415143("
Document 3");2
(4)
a reply letter by DG Trade to the European Union Chamber of Commerce in
China (EUCCC) dated 4 November 2015 (Ares(2015)4897117) ("
Document
4");3
(5)
the report of a meeting with Heineken held on 29 January 2016
(Ares(2017)3711260) ("
Document 5");
(6)
an email exchange between DG Trade officials and the European
Automobile Manufacturers' Association (ACEA) dated 2-3 February 2016
(Ares(2017)3711549) ("
Document 6");
(7)
the report of a meeting with BusinessEurope held on 2 March 2016
(Ares(2016)1099040) ("
Document 7");
(8)
the report of a meeting with the European Centre of Employers (CEEP) held
on 3 June 2016 (Ares(2016)2609548) ("
Document 8");
2
The position paper is available at
https://www.businesseurope.eu/sites/buseur/files/media/position_papers/rex/2015-10-
23_assessment_of_commission_proposal_on_a_new_investment_court_system.pdf
3
The original letter by EUCCC dated September 2016 – thus outside the scope of your current
request – was fully disclosed to you on 4 March 2016 in reply to your application for access to
documents request Ref. GestDem No. 2015/5130.
2
(9)
the report of a meeting with the European Association of Automotive
Suppliers (CLEPA) held on 9 June 2016 (Ares(2017)3712001) ("
Document
9");
(10)
the report of a meeting with European Services Forum (ESF) held on 14 July
2016 (Ares(2016)5299715) ("
Document 10");4
(11)
an email exchange between DG Trade officials and the European Ships and
Maritime Equipment Association (SEA Europe) dated 26-27 July 2016
(Ares(2017)3712792) ("
Document 11");
(12)
the report of a seminar organised by BusinessEurope, the EU-China
Chamber of Commerce and the EU-China Business Association on 19
September 2016 (Ares(2017)3713080) ("
Document 12");
(13)
the report of a meeting with SEA Europe held on 20 September 2016
(Ares(2016)5729207) ("
Document 13");5
(14)
an email exchange between DG Trade officials and the European Lighting
Industry Association (LightingEurope) dated 26-30 September 2016
(Ares(2017)3713302) ("
Document 14");6
(15)
the report of a meeting with the European Rail Industry Association
(UNIFE) held on 13 October 2016 (Ares(2017)3714685) ("
Document 15");
(16)
the report of a meeting with the German-Chinese Lawyers Association held
on 28 October 2016 (Ares(2017)3715482) ("
Document 16");
(17)
the report of a meeting with BusinessEurope held on 14 November 2016
(Ares(2016)6435856) ("
Document 17");
(18)
the report of a meeting with BusinessEurope held on 5 December 2016
(Ares(2016)808460) ("
Document 18")
(19)
the report of a meeting with the EU Chamber of Commerce in China
(EUCCC)'s investment working group held on 8 February 2017
(Ares(2017)808460) ("
Document 19");
(20)
a letter by EUROCHAMBERS to the EU Commissioner for Trade Cecilia
Malmström dated 21 March 2017 (Ares(2017)1517815) ("
Document 20");
(21)
the reply to the abovementioned letter by the Trade Commissioner dated 10
April 2017 (Ares(2017)1894609) ("
Document 21").
4
In accordance with the Code of Good Administrative Behavior (
see below footnote 7) , please note
that the letter mentioned in the report is out of scope as it does not refer to the EU's investment
protection negotiations but to the local content requirements challenges faced by the European
industry association when operating in emerging markets.
5
In accordance with the Code of Good Administrative Behavior, please be informed that the
Facts
& Figures sheet mentioned in the report was not enclosed to the report.
6
In accordance with the Code of Good Administrative Behavior, please note that the meeting
mentioned in the abovementioned email exchange did not relate to "
the EU's negotiations of investment protection provisions".
3
A list of these documents is enclosed in Annex I. Furthermore, a list of meetings has
been created for the purpose of your request and provided in Annex II to this letter.
Please note, however, that Regulation 1049/2001 applies only to documents
held by
European Institutions and does not require the latter to create new documents for the
purpose of an access to documents request. We therefore prepared the abovementioned
list of meetings as an act of courtesy because its creation did not require disproportionate
resources and in accordance with the Code of Good Administrative Behaviour.7
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
In accordance with settled case law8, 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"9
.
In view of the objectives pursued by Regulation 1049/2001, notably to give the public the
widest possible right of access to documents10, "
the exceptions to that right […]
must be
interpreted and applied strictly"11
.
Having carefully examined the documents that you requested in light of the applicable legal
framework, we are pleased to inform you that a partial release can be granted to
Documents 1 –
21. Copies of these documents are enclosed.
In particular, as regards
Documents 1,
3,
4,
7,
9 –
16 and
18 –
21 only names and other
personal date have been removed pursuant to Article 4.1(b) of Regulation 1049/2001 and
in accordance with Regulation (EC) No. 45/200112 ("Regulation 45/2001"). Hence, the
main content of these documents is accessible.
In documents
8 and
17,
in addition to personal data, other information was redacted
pursuant to Article 4.1(a) third indent of Regulation 1049/2001 (protection of the public
interest as regards international relations).
7
https://ec.europa.eu/info/sites/info/files/code-of-good-administrative-behaviour_en.pdf
8
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.
9
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.
10
Regulation (EC) No 1049/2001, recital (4).
11
Judgment in
Sweden v Commission, C-64/05 P, EU:C:2007:802, paragraph 66.
12
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.
4
In documents
2,
5 and
6, further information was redacted pursuant to Article 4.2 first
indent of Regulation 1049/2001 (commercial interests).
The reasons justifying the application of the abovementioned exceptions are set out
below in Sections 2.1 to 2.3. Section 3 contains an assessment of whether there exists an
overriding public interest in the disclosure.
2.1. Protection of international relations (Documents 8 and 17)
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."
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".13
More specifically, the General Court has stated 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".
A sentence has been removed from
Document 8 as it contains an internal assessment of
specific aspects of negotiations with the United States of America. While these
negotiations have now come to a pause, the public disclosure of this information would
jeopardise the results achieved so far and negatively influence further discussions on the
same matter. This would undermine the position of the EU in international negotiations,
thus ultimately affecting their final outcome.
Three sentences have been removed from
Document 17. These sentences contain the
views, positions, concerns and priorities of stakeholders regarding the subject of the
Multilateral Investment Court, and the reaction of the Commission to the specific issues
discussed during the meeting.
While the objective to establish a Multilateral Investment Court is embedded in the
Commission’s
Trade for All Communication and mentioned in the EU-Canada
Comprehensive Economic Trade Agreement (CETA) and the EU-Vietnam Free Trade
Agreement, the discussion with trading partners on the setting up of such court are
currently in a preliminary exploratory phase and no formal negotiations have started yet.
The Commission is also currently seeking input from a wide range of stakeholders,
including in the context of a public consultation,14 and engaging in talks and exchange of
views with trading partners on this project both in bilateral and multilateral settings. The
position of the EU in this context has not yet been entirely established and is still the
subject of internal discussion with other institutional actors. Its definition will depend on
a wide range of factors, including the position of Member States and of other institutional
partners, as well as the input of external stakeholders, and it may evolve in function of
how the discussions with other trading partners progress.
In such specific circumstances, fully releasing internal documents which set out the
preliminary thinking of the Commission and external stakeholders on a matter on which
13
Judgment in
Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039, paragraph 63.
14
See at http://trade.ec.europa.eu/doclib/press/index.cfm?id=1610.
5
formal negotiations have not yet started, would weaken the position of the EU, its
strategic interests and its negotiating capacity in the future. In particular, if disclosed this
information would reduce the margin of manoeuvre of the EU and be exploited by our
trading partners to support certain positions or extract specific concessions in this and
other ongoing and future negotiations, thereby undermining the EU strategic interests and
the interest of its citizens. Indeed, the success of the future negotiations depends to a
large extent on the protection of objectives, tactics and fall-back positions of the parties
involved, and on the possibility for the EU to retain the necessary space to shape and
adjust its tactics, options, concessions and proposals in function of how the discussions
evolve.
On this basis, parts of the abovementioned
Document 17 are withheld as their disclosure
at the current stage of the multilateral discussions concerning the Multilateral Investment
Court would weaken the future position of the EU, and thus undermine in a reasonably
foreseeable manner the protection of the public interest as regards international relations.
2.2. Protection of the privacy and the integrity of the individual (Documents 1
– 21)
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 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".15
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'"16 and that "
surnames and
forenames may be regarded as personal data",17 including names of the staff of the
institutions.18
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".19
Documents 1 – 21 contain names and other personal information that allows the
identification of natural persons.
15
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.
16
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.
17
Judgment in
Commission v Bavarian Lager, C-28/08 P, EU:C:2010:378, paragraph 68.
18
Judgment in
Guido Strack v Commission, C-127/13 P,
EU:C:2014:2250, paragraph 111.
19
Judgment in C-127/13 P
Guido Strack v Commission, EU:C:2014:2250, paragraph 107 and
judgment in C-28/08 P
Commission v Bavarian Lager, EU:C:2010:378, paragraph 77.
6
I note that you have not established the necessity of having these 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. On the other hand, we do disclose the names of senior
management of the Commission starting from the Director level (included), members of
Cabinet, senior representatives of external stakeholders, and public figures.
2.3. Protection of commercial interests (Documents 2, 5 and 6)
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".
While not all information concerning a company and its business relations can be
regarded as falling under the exception of Article 4.2 first indent,20 it appears that the type
of information covered by the notion of commercial interests would generally be of the
kind protected under the obligation of professional secrecy.21 Accordingly, it must be
information that is "
known only to a limited number of persons", "
whose disclosure is
liable to cause serious harm to the person who has provided it or to third parties" and for
which "
the interests liable to be harmed by disclosure must, objectively, be worthy of
protection".22
Three sentences have been removed from
Document 2. They contain the specific details
of Telenor's license in Myanmar, its commercial strategy and detail market shares in the
country. A few words have been removed from
Document 5.
They consist of a
clarification of Heineken's concerns in the Philippines and its prospective strategy in
another country. A sentence has been removed from
Document 6.
It contains the
ACEA's assessment of the economic situation and market access problems in China.
These companies and industry association shared this information with the Commission
in confidence in order to support the EU's objectives in the investment negotiations.
There is a reasonably foreseeable and not purely hypothetical risk that revealing their
commercial strategies and priorities as well as their commercially sensitive business
information could undermine their commercial interests, including by impacting on their
relations with third countries.
3.
OVERRIDING PUBLIC INTEREST
The exception laid down in Article 4.2 of Regulation 1049/2001 applies unless there is an
overriding public interest in disclosing the documents. Such an interest must, first, be
public and, secondly, outweigh the harm caused by the disclosure.
The negotiations of international agreements as such "
fall within the domain of the
executive", which entails that "
public participation in the procedure relating to the
negotiation and the conclusion of an international agreement is necessarily restricted, in
20 Judgment in
Terezakis v Commission, T-380/04, EU:T:2008:19, paragraph 93.
21 See Article 339 of the Treaty on the Functioning of the European Union.
22 Judgment in
Bank Austria v Commission, T-198/03, EU:T:2006:136, paragraph 29.
7
view of the legitimate interest in not revealing strategic elements of the negotiations".23
Documents 2,
5 and
6 pertain to the executive functions of the EU, as they concern
consultations with external stakeholders aimed at collecting useful input for the trade and
investment negotiations.
Accordingly, we have also considered whether the risks attached to the release of the
withheld parts of
Documents 2, 5 and 6 are outweighed by the public interest in
accessing the requested documents. We have not been able to identify any such public
interest capable of overriding the commercial interests of the companies and
organisations concerned.
***
You may reuse
Documents 2,
4,
5,
7,
8,
9,
10,
12,
13,
15,
16,
17,
18,
19 and
21 disclosed
free of charge for non-commercial and commercial purposes provided that the source is
acknowledged and that you do not distort the original meaning or message. The
Commission does not assume liability stemming from the reuse.
Documents 1,
3,
6,
11,
14 and
20 were received from third parties. They are disclosed
for information only and cannot be re-used without the agreement of the originator. They
do not reflect the position of the Commission and cannot be quoted as such.
***
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled 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:
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
23
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
Enclosures:
- Annex I: list of documents
- Annex II: list of meetings
- Annexes III to XXIII: documents disclosed
9
Electronically signed on 16/08/2017 17:49 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563
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