Ref. Ares(2018)6067045 - 27/11/2018
EUROPEAN COMMISSION
Directorate-General for Trade
The Director-General
Brussels,
trade.dga1.b.2(2018)/5888115
By registered letter with acknowledgment
of receipt
Ms Pia Eberhardt
Corporate Europe Observatory
Rue d'Edimbourg 26
1050 Brussels
Advance copy by email:
ask+request-5971-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Reply to your access to documents request GestDem No. 2018/5134
Dear Ms Eberhardt,
I refer to your request for access to documents under Regulation (EC) No. 1049/2001
("Regulation 1049/2001")1 dated 2 October 2018 and registered on the same date under
the above-mentioned reference number.
Please accept our apologies for the delay in answering your request, which is mainly due
to the high number of requests for access to documents being processed at the same time
by the Directorate-General for Trade (hereinafter ‘DG TRADE’).
1.
SCOPE OF YOUR REQUEST
In your application you seek access to the following documents:
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 March 2017). The list should
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
include the names of the individuals and organisations attending; the date; and
any agendas / minutes / notes produced;
minutes and other reports of these meetings;
all correspondence (including emails) between DG Trade officials and/or
representatives (including the Commissioner and her Cabinet) and
representatives of companies, business associations and law firms, in which the
EU's foreign investment policy was discussed (since March 2017).
You clarified that by “EU foreign investment policy” you mean:
EU negotiations of investment protection provisions, for example, with Canada,
Japan, Singapore, China, the ASEAN countries and Mexico;
the Multilateral Investment Court project;
the EU's role in the Energy Charter Treaty (ECT);
the ECJ's Achmea ruling from April 2018 and its implications.
My services have identified 15 documents falling within the scope of your request, some
of which include annexes. We enclose for ease of reference a list of the relevant
documents 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 law, 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 1049/2001.2
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 would undermine the protection of the interest covered by the
exception. Third, the risk of that interest being undermined must be "
reasonably foreseeable
and not purely hypothetical".3 If the institution 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".4
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.
4
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 documents5,
"the exceptions to that right […] must be
interpreted and applied strictly"6
.
Having carefully examined your request in light of the applicable framework, I am pleased
to inform you that annexes 1 and 2 to document 2, the annex to document 3 and the annex
to document 15 are
publicly available7 and that
full access can be granted to document 11
as well as to the annex to document 6 and to annex 2 to document 12.
Except with respect to the annex 3 to document 2,
partial access is granted to the remaining
documents. In particular, personal data have been redacted from all those documents,
pursuant to Article 4(1)(b) of Regulation 1049/2001 concerning the protection of the
privacy and protection of the individual and in accordance with Regulation (EC)
No 45/2001 (hereinafter, ‘Regulation 45/2001’).8
In documents 1, 2, 3 and 8, information in addition to personal data has been redacted
pursuant to Article 4(2) first indent of Regulation 1049/2001 concerning the protection of
the commercial interests of a natural or legal person, including intellectual property. In
document 6, information in addition to personal data has been protected under Article
4(1)(a) third indent of Regulation 1049/2001 concerning the protection of the public
interest as regards international relations.
Please note that information not related to the scope of your request has been marked as
falling outside the scope.
I regret to inform you that
access is not granted to the annex 3 to document 2 pursuant to
Article 4(2) first indent of Regulation 1049/2001 concerning the protection of the
commercial interests of a natural or legal person, including intellectual property.
The reasons justifying the application of the aforesaid 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 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: (a) the
public interest as regards: […] international relations".
5 Regulation (EC) No 1049/2001, recital (4).
6 Judgment in
Sweden v Commission, C-64/05 P, EU:C:2007:802, paragraph 66.
7 You can find the link to these documents in Annex 1 to this letter (the list of documents).
8 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
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
appreciation"
.9 In this context, the Court of Justice of the EU 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".10
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".11 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".12
Document 6 is the report of a meeting with an external stakeholder. Some sentences have
been redacted since they reveal the EU's strategic position as regards the ongoing
discussion on reforming the Investor-State Dispute Settlement (ISDS) in the framework
of the UNCITRAL in light of the potential launch of multilateral negotiations, as well as
third countries' diverging views with respect to the ongoing discussion aforementioned.
Releasing that information would pose a significant risk to the good relations between the
EU and the concerned third countries. That information has therefore to remain
protected.
2.2. Protection of the privacy and the 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".
9 Judgment in
Sison v
Council, C-266/05 P, EU:C:2007:75, paragraph 36.
10 Judgment in
Council v Sophie in’t Veld, C-350/12 P, EU:C:2014:2039, paragraph 63.
11 Judgment in
Sophie in’t Veld v Commission, T-301/10, EU:T:2013:135, paragraphs 123-125.
12
Id., paragraph 125.
4
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".13
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'"14 and that "
surnames and
forenames may be regarded as personal data",15 including names of the staff of the
institutions.16
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".17
All the documents partially released contain
names or other personal information (e-mail
addresses, telephone numbers, job titles) that allows the identification of natural persons,
as well as biometric data.
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 protected
in order to ensure the protection of the privacy and integrity of the individuals concerned.
However, please note that in line with the Commission's commitment to ensure
transparency and accountability, the names of Commissioners, of Members of their
Cabinets and of the senior management of the Commission (i.e. Director level and above)
are disclosed. For external stakeholders, the name of their main representatives are also
disclosed.
2.3. 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: […]
13
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.
14
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.
15
Judgment in
Commission v Bavarian Lager, C-28/08 P, EU:C:2010:378, paragraph 68.
16
Judgment in
Guido Strack v Commission, C-127/13 P,
EU:C:2014:2250, paragraph 111.
17
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.
5
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,18 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.19 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".20
Documents 1, 2, 3 and 8 are reports of meetings with different stakeholders, in which
sensitive information of a commercial nature was expressed in support of the views and
arguments of these stakeholders. Certain parts of these documents have been redacted, as
they contain commercial priorities, strategies and concerns these stakeholders may have.
In particular, some words have been removed from document 1. They reveal part of the
ERT's (European Roundtable of Industrialists) commercial strategy towards China.
One sentence and two paragraphs have been removed from document 2. They contain the
specific details of SEA (Shipyards & Equipment Association) members' market access
difficulties in China and provide concrete examples of Chinese regulatory measures
aimed at strengthening entry barriers in the framework of the Chinese shipbuilding
market.
A paragraph has been removed from document 3. It reveals Düsseldorf Chamber of
Commerce's members strategical approach towards China and the challenges they are
facing as regards market access.
Disclosing the information redacted in document 8 could harm the competitive position
of the stakeholders concerned.
Annex 3 to document 2 is DAMEN’s presentation in the context of the China-EU
Shipbuilding Dialogue and contains commercially sensitive information, sales figures
and market shares, strategic investment considerations as well as market access action
plans. It is therefore justified not to disclose it.
These companies and industry associations shared this information with the Commission
in confidence in order to support the EU's objectives in the investment negotiations or on
the MIC initiative. 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
18 Judgment in
Terezakis v Commission, T-380/04, EU:T:2008:19, paragraph 93.
19 See Article 339 of the Treaty on the Functioning of the European Union.
20 Judgment in
Bank Austria v Commission, T-198/03, EU:T:2006:136, paragraph 29.
6
impacting on their relations with third countries. Ensuring that the Commission continues
to receive access to this information and that the industry engages in open and frank
discussions with the Commission, are key elements for the success of the internal and
external policies of the EU and its international negotiations. Bringing in the public
domain specific business related information that companies share with the Commission
may prevent the Commission from receiving access to such information in the future.
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.
Accordingly, we have also considered whether the risks attached to the release of the
withheld parts of documents 1, 2, 3 and 8 and of the entire annex 3 to document 2 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 concerned. The public interest in this specific case rather lies
on the protection of the legitimate confidentiality interests of the stakeholders concerned
to ensure that the Commission continues to receive useful contributions for its policy-
making without undermining the commercial position of the entities involved.
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 the annex 3 to document 2. However, this document is entirely covered under
the exception set out in Article 4(2) first indent of Regulation 1049/2001 as it is
impossible to disclose any parts without undermining the protection of the commercial
interests of DAMEN.
* * *
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, Document Management & Access to Documents (SG.C1)
BERL 5/282
1049 Bruxelles
7
or by email t
o: xxxxxxxxxx@xx.xxxxxx.xx.
Yours sincerely,
Jean-Luc DEMARTY
Enclosures:
Annex I: list of documents
Documents (partially) disclosed
8
Electronically signed on 27/11/2018 11:31 (UTC+01) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563
Document Outline