Ref. Ares(2019)4296704 - 05/07/2019
Directorate-General for Trade
The Director General
By registered letter with acknowledgment
Mr Marnix Kleinjan
2597 VH Den Haag
Advance copy by email:
Your application for access to documents – Ref GestDem 2019/2434
Dear Mr Kleinjan,
I refer to your request of 13 April 2019 for access to documents under Regulation (EC) No
1049/20011 ("Regulation 1049/2001") and hereinafter registered as GestDem 2019/2434.
SCOPE OF YOUR REQUEST
In your application, you request access to the following documents:
“all communication, including emails, and documents (agenda, minutes, list of participants, etc.)
related to the following meetings between Miguel Ceballos Baron and Heineken:
30/01/2019 - EU Trade Policy
27/03/2018 - EU-Mexico Association Agreement negotiations
25/01/2018 - Trade Agreement with Mexico
19/06/2017 - beer market in Mexico and Mercosur
20/02/2017 - Trade relations EU-Mexico”
We have identified 16 documents corresponding to the scope of your request. A list of these
documents providing a description and indicating the level of disclosure is attached to this
letter jointly with copies of the accessible documents.
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. +32 229 91111
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 poses a “reasonably foreseeable and not purely hypothetical
” risk of undermining the
protection of the interest covered by the exception. Third, 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
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"
Having examined the requested documents under the applicable legal framework, I am
pleased to grant you partial access to all 16
In documents 1-3
, 5, 7, 8
, only names and other personal data have been redacted
pursuant to Article 4(1)(b) of Regulation 1049/2001 and in accordance with Regulation (EC)
No 2018/1725. Hence, the main content of these documents is accessible.
In documents 4
, 6, 9
, in addition to personal data, additional information was
redacted as it is covered either by the exception set out in Article 4(1)(a) third indent of
Regulation 1049/2001 (protection of the public interest as regards international relations)
and/or by the exception set out in Article 4(2) first indent of Regulation 1049/2001 (protection
of the commercial interest of a natural or legal person) and/or Article 4.(3) (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,
2.3 and 2.4. Section 3 contains an assessment of whether there exists an overriding public
interest in the disclosure.
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.
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.
Regulation (EC) No 1049/2001, recital (4).
Judgment in Sweden v Commission,
C-64/05 P, EU:C:2007:802, paragraph 66.
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 appreciation".
6 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"
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
and "have a negative effect on the negotiating position of the
as well as "reveal, indirectly, those of other parties to the negotiations".
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".
Access to parts of the document 4, 6
is not granted as their disclosure would reveal
strategic interests, priorities and business concerns of the EU. As such, this information could
indirectly reveal negotiating priorities, strategic objectives and tactics, which the EU could
consider pursuing in its trade negotiations.
More generally, it remains important for the EU when negotiating with its counterpart to
retain a certain margin of manoeuvre to shape and adjust its tactics, options and positions in
order to safeguard the EU's interests. Exposing internal views and considerations would
weaken the negotiating capacity of the EU and consequently, the protection of the public
interest as regards international relations.
There is a reasonably foreseeable risk that the public disclosure of the protected information
would undermine and weaken the position of the EU as the European Commission has not
Judgment in Sison
C-266/05 P, EU:C:2007:75, paragraph 36.
Judgment in Council v Sophie in’t Veld
, C-350/12 P, EU:C:2014:2039, paragraph 63.
Judgment in Sophie in’t Veld v Commission
, T-301/10, EU:T:2013:135, paragraphs 123-125.
, paragraph 125.
yet proposed to the Council the decisions to sign and to conclude the relevant agreement
with Mexico. It may also undermine the EU in any future trade negotiations. Indeed, the
information contained in these documents would allow the EU’s trading partner to draw
conclusions with respect to certain detailed positions, concerns, views and strategies of the
Commission and of its Member States. This in turn may allow the counterpart to extract
specific concessions from the EU in the context the ongoing negotiations, thus to the
disadvantage of the EU’s international relations, and the interests of its citizens, consumers
and economic operators.
The above mentioned passages must, therefore, remain protected.
Protection of privacy and integrity of the individual
Pursuant to Article 4(1)(b) of Regulation (EC) No 1049/2001, access to a document has to be
refused if its disclosure would undermine the protection of privacy and the integrity of the
individual, in particular in accordance with European Union legislation regarding the protection
of personal data.
The applicable legislation in this field is Regulation (EC) No 2018/1725 of the European
Parliament and of the Council of 23 October 2018 on the protection of natural persons with
regard to the processing of personal data by the Union institutions, bodies, offices and agencies
and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and
Decision No 1247/2002/EC10 (‘Regulation 2018/1725’).
All the documents partially released contain personal information, such as names, e-mail
addresses, telephone numbers that allow the identification of natural persons, as well as
other personal information like signatures.
Indeed, Article 3(1) of Regulation 2018/1725 provides that personal data "means any
information relating to an identified or identifiable natural person […]
". The Court of Justice
has specified that
any information, which by reason of its content, purpose or effect, is linked
to a particular person is to be considered as personal data.11 Please note in this respect that the
names, signatures, functions, telephone numbers and/or initials pertaining to staff members of
an institution are to be considered personal data.12
In its judgment in Case C-28/08 P (Bavarian Lager
)13, the Court of Justice ruled that when a
request is made for access to documents containing personal data, the Data Protection
Regulation becomes fully applicable14
Official Journal L 205 of 21.11.2018, p. 39.
Judgment of the Court of Justice of the European Union of 20 December 2017 in Case C-434/16,
Peter Novak v Data Protection Commissioner
, request for a preliminary ruling, paragraphs 33-35,
Judgment of the General Court of 19 September 2018 in case T-39/17, Port de Brest v Commission
Judgment of 29 June 2010 in Case C-28/08 P, European Commission v The Bavarian Lager Co. Ltd
EU:C:2010:378, paragraph 59.
Pursuant to Article 9(1)(b) of Regulation 2018/1725, personal data shall only be transmitted to
recipients established in the Union other than Union institutions and bodies if "[t]he recipient
establishes that it is necessary to have the data transmitted for a specific purpose in the public
interest and the controller, where there is any reason to assume that the data subject’s
legitimate interests might be prejudiced, establishes that it is proportionate to transmit the
personal data for that specific purpose after having demonstrably weighed the various
. Only if these conditions are fulfilled and the processing constitutes lawful
processing in accordance with the requirements of Article 5 of Regulation 2018/1725, can the
transmission of personal data occur.
According to Article 9(1)(b) of Regulation 2018/1725, the European Commission has to
examine the further conditions for a lawful processing of personal data only if the first
condition is fulfilled, namely if the recipient has established that it is necessary to have the data
transmitted for a specific purpose in the public interest. It is only in this case that the European
Commission has to examine whether there is a reason to assume that the data subject’s
legitimate interests might be prejudiced and, in the affirmative, establish the proportionality of
the transmission of the personal data for that specific purpose after having demonstrably
weighed the various competing interests.
In your application, you do not put forward any arguments to establish the necessity to have the
data transmitted for a specific purpose in the public interest. Therefore, we do not have to
examine whether there is a reason to assume that the data subject’s legitimate interests might be
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: […] 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
falling under the exception of Article 4(2) first indent15, 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 secrecy16. 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
Whereas this judgment specifically related to 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, the principles set out therein are also applicable under the new data protection regime
established by Regulation 2018/1725.
Judgment in Terezakis v Commission
, T-380/04, EU:T:2008:19, paragraph 93.
See Article 339 of the Treaty on the Functioning of the European Union.
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 "
Some passages in documents 4
as well as some parts of the annex to document 9
have been withheld because they contain business sensitive including details about commercial
priorities, objectives, strategies, concerns and interests that they pursue in their respective
All this information was shared with the Commission in order to provide useful input and
support for the EU’s objectives in its trade negotiations. Operators typically share
information with the Commission so that the latter can determine how to best position itself
in the negotiations in order to protect its strategic interests and those of its industry, workers
and citizens. 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. Sharing publicly specific business related information that companies share
with the Commission may prevent the Commission from receiving access to such
information in the future.
2.4 Protection of the institution's decision-making process
Article 4(3) first subparagraph, 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 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"
18 and that the capacity of its staff
to express their opinions freely must be preserved19 so as to avoid the risk that the disclosure
would lead to future self-censorship. As the General Court noted, 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 deprived of a constructive
form of internal criticism, given free of all external constraints and pressures and designed to
facilitate the taking of decisions […]"
Certain parts of the annex to document 9
have been withheld as its disclosure would seriously
undermine the ongoing decision-making process related to trade negotiations with Mexico.
These negotiations have not been entirely finished, as the European Commission has not yet
submitted to the Council a proposal to sign and conclude them.
Judgment in Bank Austria v Commission,
T-198/03, EU:T:2006:136, paragraph 29.
Judgment in MasterCard and Others v Commission, T-516/11, EU:T:2014:759, paragraph 71.
Judgment in Muñiz v Commission, T-144/05, EU:T:2008:596, paragraph 89.
Judgment in MyTravel v Commission, T-403/05, EU:T:2008:316, paragraph 52.
This decision making process needs to be preserved from external pressure in order to
preserve the “thinking space” of the Commission, its room for manoeuvre and
independence, and the atmosphere of trust in which internal discussions within the
Commission and between institutions take place.
In particular, exposing internal views and considerations would be premature at this stage
and would subject the Commission to external pressure, potential manipulation and
unfounded conclusions both from external stakeholders and negotiating partners. It would have
a negative impact on decisions still to be taken by the EU by giving out elements of the
Commission's assessment and its possible future approaches and proposals. This would
consequently undermine the decision-making process of the EU institutions by revealing
specific elements taken into account for the ongoing discussions. 3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(2) first indent of Regulation 1049/2001 applies unless
there is an overriding public interest in disclosure of the documents. Such an interest must,
first, be public and, secondly, outweigh the harm caused by disclosure. Accordingly, we
have also considered whether the risks attached to the release of the withheld parts of
and parts of the annex to document 9
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 ongoing negotiations with third countries
without undermining the commercial position of the entities involved.
In case you disagree with the assessment contained 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:
Transparency, Document Management & Access to Documents (SG.C1)
or by email to: email@example.com
Annex 1: List of documents
Electronically signed on 05/07/2019 11:29 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563