EUROPEAN COMMISSION
Brussels, 22.7.2019
C(2019) 5604 final
Ms Josefina Marti
Calle Juan Bravo 62
28006 Madrid
Spain
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject: Your confirmatory applications for access to documents under Regulation
(EC) No 1049/2001 – GESTDEM 2019/1477
Dear Ms Marti,
I refer to your email of 20 May 2019, registered on 21 May 2019, in which you submit a
confirmatory application in accordance with Article 7(2) of Regulation (EC) No 1049/2001
regarding public access to European Parliament, Council and Commission documents2
(hereafter ʻRegulation (EC) No 1049/2001ʼ).
1.
SCOPE OF YOUR REQUEST
On 11 March 2019, you submitted an initial application for access to documents under
Regulation (EC) No 1049/2001 to the Directorate-General for International Cooperation and
Development, in which you requested access to:
ʻAll the correspondence (including phone calls, emails and files attached, letters)
between the Special Envoy for the promotion of freedom of religion or belief
outside the EU, Ján Figeľ, and churches, religious communities or any
organizations, representing churches and religious communities. The information I
ask is from May 2016;
A list of all the meetings (from May 2016) and all documents produced and
exchanged in those meetings between Ján Figeľ and churches, religious
communities or any organizations representing churches and religious
communities.ʼ
1
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 229 91111
This application was registered under reference number GESTDEM 2019/1477.
The Directorate-General for International Cooperation and Development identified the
following documents as falling under the scope of your request:
1. Email invitation to the 19th Annual EPP Group Dialogue with churches and
religious institutions (Ares(2019)2572220, document 1) and Official invitation to the
19th Annual EPP Group Dialogue with churches and religious institutions
(Ares(2019)2572220, document 1b);
2. Letter
from
Bahá'í
International
Community
to
EU
Special
Envoy
(Ares(2019)109449, document 2);
3. Internal flash note - Meeting with EU Special Envoy Ján Figeľ and Cardinal Bo of
Myanmar (Ares(2019)1891351, document 3);
4. Meeting between Ján Figeľ and His Holiness Dalai Lama (Ares(201902211007,
document 4);
5. Meeting between Ján Figeľ and a representative of the Christian Catholics in Syria
(Ares(2019)2673260, document 5);
6. Invitation to the annual meeting of the European Platform against Religious
Intolerance and Discrimination (Ares(2019)2576671, document 6);
7. Email request for a meeting from the Jehovah's Witnesses to Ján Figeľ
(Ares(2019)2576385, document 7a) and letter from Jehovah’s Witnesses for a
meeting with Ján Figeľ (Ares(2019)2576385, document 7b);
8. Minutes of the meeting between Ján Figeľ and the Jehovah Witnesses’ international
delegation (Ares(2019)2653205, document 8);
9. Email to send the congratulatory note on the extension of the Special Envoy mandate
(Ares(2019)2575192, document 9a) and Congratulatory note on the extension of the
Special Envoy mandate (Ares(2019)2575192, document 9b);
10. Letter to Ján Figeľ on the role of religion in society (Ares(2019)109590, document
10);
11. Invitation to a working lunch at the EJA headquarters in Brussels
(Ares(2019)1956871, document 11);
12. Meeting
between Ján Figeľ and the patriarchs from Middle East
(Ares(2019)2649428, document 12);
13. Exchange of emails with an evangelical organisation in India on the signature of HD
declaration (Ares(2019)19585681, document 13).
At the initial stage, the Directorate-General for International Cooperation and Development:
granted wide partial access to documents 1, 2, 3, 4, 6, 7a, 8, 9a, 9b, 10, 11, 12 and
13 only with personal data redacted on the bases of Article 4(1)(b) (protection of
privacy and the integrity of the individual) of Regulation (EC) No 1049/2001;
refused access to document 7 and parts of document 5 on the basis of the exception
protecting the public interest as regards international relations (Article 4(1)(a), third
indent of Regulation (EC) No 1049/2001).
2
The reason for your confirmatory application was the absence of a list of meetings between
Ján Figeľ and churches, religious communities or any organizations representing churches
and religious communities.
In your confirmatory application, you do not question the redactions of personal data in the
documents disclosed to you nor the refusal of document 7b and parts of document 5 at the
initial stage which is why I consider these parts as falling outside the scope of this
confirmatory decision.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant to
Regulation (EC) No 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General concerned at the initial stage.
Following this renewed search, I confirm that the European Commission does not hold any
list of meetings that would correspond to the description given in your confirmatory
application.
Indeed, as specified in Article 2(3) of Regulation (EC) No 1049/2001, the right of access as
defined in that regulation applies only to existing documents in the possession of the
institution. I would like to refer in this respect to the judgment of the Court of Justice in
Case C-127/13 P (
Strack v European Commission), according to which ‘[n]either Article 11
of Regulation 1049/2001 nor the obligation of assistance in Article 6(2) thereof, can oblige
an institution to create a document for which it has been asked to grant access but which
does not exist’.3
The above-mentioned conclusion has been confirmed in Case C-491/15 P
(
Typke v European Commission), where the Court of Justice held that ‘the right of access to
documents of the institutions applies only to existing documents in the possession of the
institution concerned and […] Regulation No 1049/2001 may not be relied upon to oblige
an institution to create a document which does not exist. It follows that […] an application
for access that would require the Commission to create a new document, even if that
document were based on information already appearing in existing documents held by it,
falls outside the framework of Regulation No 1049/2001’.4
Furthermore, the General Court held in Case T-468/16 (
Verein Deutsche Sprache v
European Commission) that there exists a presumption of lawfulness attached to the
declaration by the institution asserting that documents do not exist.5 This presumption
continues to apply, unless the applicant can rebut it by relevant and consistent evidence.6
3 Judgment of the Court of Justice of 2 October 2014,
Strack v European Commission, C-127/13 P,
EU:C:2014:2250, paragraph 46.
4 Judgment of the Court of Justice of 11 January 2017,
Typke v European Commission, C-491/15 P,
EU:C:2017:5, paragraph 31.
5
Judgment of the General Court of 23 April 2018,
Verein Deutsche Sprache v European Commission,
T-468/16, EU:T:2018:207, paragraphs 35-36.
6
Ibid.
3
The Court of Justice, ruling on an appeal in Case C-440/18 P, has recently confirmed these
conclusions.7
Given that the European Commission does not hold any further document corresponding to
the description given in your application, it is not in a position to fulfil your request.
3.
MEANS OF REDRESS
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
European Ombudsman under the conditions specified respectively in Articles 263 and 228
of the Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Martin SELMAYR
Secretary-General
7
Order of the Court of Justice of 30 January 2019,
Verein Deutsche Sprache v Commission, C-440/18 P,
EU:C:2019:77, paragraph 14.
4
Document Outline