EUROPEAN COMMISSION
Brussels, 23.4.2020
C(2020) 2690 final
Mr Maarten Hillebrandt
Univeristy of Helsinki
Faculty of Law
Yliopistonkatu 3
00101 Helsinki
Finland
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/2001 1
Subject:
Your confirmatory applications for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2019/7132, 2019/7134,
2019/7136, 2019/7137, 2019/7138
Dear Mr Hillebrandt,
I refer to your email of 12 February 2020, registered on 13 February 2020, 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
documents 2 (hereafter ‘Regulation (EC) No 1049/2001’).
1.
SCOPE OF YOUR REQUEST
In your initial applications of 9 December 2020, addressed to the Secretariat-General of
the European Commission, you requested access to ‘all replies to confirmatory
applications based on Regulation (EC) No 1049/2001 adopted by the European
Commission in 20143, 20154, 20165, 20176 and 20187ʼ.
1
OJ L 345 29.12.2001, p. 94.
2 OJ L 145 31.5.2001, p. 43.
3 Registered under reference number GESTDEM 2019/7138.
4 Registered under reference number GESTDEM 2019/7137.
5 Registered under reference number GESTDEM 2019/7136.
6 Registered under reference number GESTDEM 2019/7134.
7 Registered under reference number GESTDEM 2019/7132.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
The European Commission proceeded to estimate the workload associated with the
handling of the five initial applications introduced by you on the same day, concerning
the same type of documents, i.e., decisions on confirmatory applications adopted by the
European Commission on the basis of Regulation (EC) No 1049/2001.
As indicated in the annex to the report from the European Commission on the application in
2018 of Regulation (EC) No 1049/2001 regarding public access to European Parliament,
Council and Commission documents8, the European Commission provided the following
numbers of replies to confirmatory requests based on Regulation (EC) No 1049/2001 in the
years concerned by your applications:
272 in 2014;
230 in 2015;
220 in 2016;
259 in 2017;
and 288 in 2018.
Based on the above numbers, there are at least 1.269 documents falling under the scope of
your five initial applications, also considering that decisions on confirmatory applications
enclose a varying number of annexes. These documents form part of these decisions and full
or partial access was granted to them. Due to the very high volume of the documents under
review9, the analysis of the documents falling under your above-mentioned applications
cannot be completed within the normal time limits set out in Article 7 of Regulation (EC)
No 1049/2001.
According to the Secretariat-General’s preliminary estimates and based on past experience
with requests concerning the same type of documents, the workload for dealing with your
initial applications would require an excessive number of working days, estimated in at least
3.800 working days, covering the following steps:
identification, gathering and quick screening of the documents falling under your
initial requests;
assessment of the content of the documents;
performing possible redactions of the relevant parts falling under exceptions of
Regulation (EC) No 1049/2001, in particular based on the exception of Article
4(1)(b) of Regulation (EC) No 1049/2001 (protection of privacy and the integrity
of the individual);
preparation of the draft replies;
preparation of the e-signatory of the files;
formal approval of the draft decisions by the hierarchy of the Secretariat-General;
and
8 COM(2019) 356 final.
9 As confirmed by the General Court in its Judgment of 10 December 2010 in Case T-494/08,
Ryanair v
European Commission, the volume of documents concerned under several applications for
access to documents can be considered together, where these applications were made to the European
Commission almost simultaneously, from the same applicant and covering cases which were connected.
2
final check of the documents to be released and dispatch of the replies.
These estimates took also into account other applications for access to documents10 and
other tasks that the European Commission staff concerned would have to deal with during
the period of handling your initial applications.
The European Commission therefore concluded that the workload relating to the disclosure
of the documents requested under your initial applications would be disproportionate as
compared to the objectives set by the applications for access to these documents, and that
the corresponding resources could not be allocated to handle your requests, so as to
safeguard the interests of good administration and to ensure the proper handling of
applications originating from other applicants.
1.1. Fair solution in accordance with article 6(3) of Regulation (EC) No
1049/2001
As stated by the EU Courts, the European Commission must respect the principle of
proportionality and ensure that the interest of the applicant for access is balanced against
the workload resulting from the processing of the application for access in order to
safeguard the interests of good administration.
In its letter of 23 December 2019, the Secretariat-General described in detail the actions
needed in order to handle these requests and concluded that the handling of your five
simultaneous requests could not be completed within the normal time limits set out in
Article 7 of Regulation (EC) No 1049/2001. It underlined that, in accordance with the
case law of the EU Courts, a fair solution can only concern the content or the number of
documents applied for, not the deadline for replying11. Based on Article 6(3) of
Regulation (EC) No 1049/2001, it asked you to specify your specific interest in the
documents requested12, and whether you could narrow down the scope of your request, to
reduce it to a more manageable number, namely to deal with two documents falling within
the scope of each of your requests, i.e., per year concerned, or, in the alternative, to deal
with an overall number of ten documents falling within the scope of your request as limited
to one specific year.
In your reply of 28 December 2019, you counter-proposed to limit the scope of your
requests to the confirmatory decisions adopted in the year 2018, and to exclude their
annexes from the scope of your request.
10 Including similar initial applications for access to confirmatory decisions adopted by the
European Commission.
11 Judgment of the Court of Justice of 2 October 2014,
Guido Strack v European Commission,
C-127/13 (hereafter ‘
Guido Strack v European Commission’)
, EU:C:2014:2250, paragraphs 26-28.
12 Ibid, paragraph 28; Judgment of the General Court of 22 May 2012,
EnBW Energie
Baden-Württemberg v European Commission, T-344/08, EU:T:2012:242, paragraph 105.
3
In its letter of 7 January 2020, the Secretariat-General informed you that, notwithstanding
the substantial reduction of the number of requested documents, the solution you proposed
would still require the treatment of 288 documents, the individual assessment of which
cannot be completed within the normal time limits set out in Article 7 of Regulation (EC)
No 1049/2001 without entailing a disproportionate administrative burden for the European
Commission. In this light, and taking into consideration your proposed solution and your
stated purpose of academic research, the European Commission proposed to deal with an
increased overall number of 30 documents falling within the scope of your requests, namely
30 confirmatory decisions, excluding their annexes, adopted in 2018. In order to provide
you with a representative sample of confirmatory decisions for the stated purpose of your
research into the European Commission’s implementation of Regulation (EC) No
1049/2001, the European Commission further proposed to deal with such overall number of
30 documents as limited to one specific month, for instance the last month of the year 2018.
In your reply of 13 January 2020, you stated you cannot agree with the further solution
proposed by the Secretariat-General. Unfortunately, therefore, despite its efforts,
the Secretariat-General has not been able to agree on a fair solution as regards the handling
of your above-mentioned initial applications.
Taking into account the time that has elapsed since the registration of your initial
applications and with a view to safeguarding the interests of good administration,
the Secretariat-General consequently saw itself obliged to balance your possible interest in
access against the workload resulting from the processing of your applications. This is in
line with the case-law of the EU Courts13. The Secretariat-General has come to the
conclusion that handling the full scope of your five initial applications, or of your proposal
of 28 December 2019, would involve an excessive administrative burden that would be
disproportionate with your possible interest in obtaining the requested documents.
Therefore, the Secretariat-General has proceeded to the unilateral restriction of the scope of
your initial applications registered under GESTDEM 2019/7132, 2019/7134, 2019/7136,
2019/7137 and 2019/7138, so as to bring it down to a more manageable number of
documents. It has decided, per the Secretariat-General’s second fair solution proposal of
7 January 2020, to handle 30 documents covered by your requests, namely the 30
confirmatory decisions, excluding their annexes, which were last adopted in the year 2018.
The Secretariat-General informed you that:
wide partial access is granted to documents 1, 3-12, and 14-30, subject only to the
redaction of personal data in accordance with Article 4(1)(b) (protection of privacy
and the integrity of the individual) of Regulation (EC) No 1049/2001;
partial access is granted to documents 2 and 13, subject to the redaction of personal
data in accordance with Article 4(1)(b) (protection of privacy and the integrity of the
individual), and of commercially sensitive information in accordance with the first
indent of Article 4(2) (protection of commercial interests of a natural or legal
person) of Regulation (EC) No 1049/2001.
13
Guido Strack v
European Commission, C-127/13, EU:C;2014:2250, paragraphs 26-28.
4
These documents, including their detailed references, are listed in annex I of the initial reply
dated 30 January 2020 (Ares(2020)587318).
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.
As a preliminary remark, I would like to clarify the scope of this confirmatory decision.
Please note that pursuant to Article 7, paragraph 2 of Regulation (EC) No 1049/2001, the
purpose of a confirmatory application is to review the initial position of the
Directorate-General in question.
In your five initial applications, you indicated expressly that you requested ʻall replies to
confirmatory applications based on Regulation (EC) No 1049/2001 adopted by the
European Commission in 2014, 2015, 2016, 2017 and 2018.ʼ In your confirmatory
application you specify that you ʻaccept the Commission’s decision to limit, in certain
places, the access to 30 documents selected for consideration on various grounds under
Article 4 of Regulation (EC) No 1049/2001.ʼ Therefore, I conclude that you do not
contest the partial access to 30 identified documents at the initial stage.
Furthermore, you underline that ʻthe Council already for many years routinely makes its
confirmatory application decisions directly available on its register and with only few
exceptionsʼ and subsequently, you request the European Commission to ʻrevise its
practice of proactive publication of confirmatory application decisions by making, such
decisions, future and past, directly downloadable, or at the very minimum visible,
through its online register at the earliest possible moment, as per Regulation
1049/2001/EC, Article 11 and 12.ʼ
I take note of these comments about the policy of proactive publication concerning two
separate EU institutions. However, it must be recalled that Regulation (EC)
No 1049/2001 does not directly link Article 11 thereof to the right to access to
documents under Article 2(1). This issue cannot therefore be taken into account in the
framework of this confirmatory decision.
Finally, you state that your confirmatory request ʻpertains exclusively to the
Commission’s argumentation related to the supposed disproportionate administrative
burden of my requests, as well as its handling of the search for fair solution.ʼ
Therefore, the review performed by the Secretariat-General at confirmatory stage will
focus only on the assessment of the way the unilateral restriction was performed at initial
stage.
Notwithstanding the above, I regret to inform you that I have to confirm the position of
the Secretariat-General of the European Commission, insofar as the unilateral restriction
of the scope of your initial application is concerned.
5
2.1. Unilateral restriction of the scope of the initial application
In your confirmatory application, you contest the position of the Secretariat-General,
as regard the unilateral restriction of the scope of your (initial) applications.
In your confirmatory application, you underline the fact that the workload could be
divided among ʻthe separate case handlers who can work simultaneously on my
requestsʼ. Although your requests were addressed only to the Secretariat-General,
they form wide-scope requests. Against this background, I would like to clarify the
circumstances in which the Secretariat-General restricted the scope of your initial
requests.
The Secretariat-General handled in the same period of time 79 confirmatory applications
including 13 newly registered confirmatory applications. At the time of your requests, the
Secretariat-General was processing 16 initial requests for access to documents, among
others five requests for access to documents were from you.
The estimated number of documents identified by the Secretariat-General as falling
within the scope of these 16 initial requests and 79 confirmatory applications was more
than 1.600 documents, out of which 1.269 documents were falling only under your five
requests for access to documents.
In order to treat your requests, and that of other applicants, the Secretariat-General would
have to carry out a certain number of tasks listed below:
- search for documents falling under requests for access to documents;
- retrieval and establishment of a complete list of the documents falling under the
scope of your requests;
- preliminary assessment of the content of the documents in light of the exceptions
of Article 4 of Regulation EC (No) 1049/2001;
- assessment of the further procedural steps to undertake, for example whether third
party consultations should be made;
- (possibly) third-party consultations under Article 4(4) of Regulation (EC) No
1049/2001 and (possibly) a further dialogue with the third party originators of
documents falling within the scope of your requests;
- final assessment of the documents in light of the comments received, including of
the possibility of granting (partial) access;
- redactions of the relevant parts falling under exceptions of Regulation EC (No)
1049/2001;
- preparation of the draft replies;
- (possible) consultation of the Legal Service;
- finalisation of the replies at administrative level and formal approvals of the draft
decisions;
- final check of the documents to be (partially) released (if applicable) (scanning of
the redacted versions, administrative treatment) and dispatch of the replies.
6
The total number of documents corresponding to the initial scope of all the requests
addressed to the Secretariat-General within the period of your initial requests for access
to documents (December 2019) amounts to more than 1.600. According to the
preliminary estimates based on past experience, such assessment (which would involve
the tasks listed above) would require the workload corresponding to more than 4.800
working days (out of which 3.800 working days only for your five requests for access).
Notwithstanding the substantial reduction of the number of requested documents you
proposed, in particular 288 confirmatory decisions adopted in 2018, the individual
assessment of which cannot be completed within the normal time limits set out in Article
7 of Regulation (EC) No 1049/2001 without entailing a disproportionate administrative
burden for the European Commission. It would normally require the workload
corresponding to more than 860 working days.
It needs to be underlined that these estimates also take into account the
fact
that
the
staff
concerned
in
the
Secretariat-General would have to deal with other tasks and applications in parallel with
the handling these initial applications of yours and with other applications received by
other applicants.
I would like to point out that the beneficiaries under Regulation (EC) No 1049/2001 are
‘any citizen of the Union, and any natural or legal person’, as specified in Article 2 of
that regulation. Simultaneous requests for access to documents addressed to a specific
institution neither correspond to the conception ‘an application for access to a document’
as stipulated in Article 7(1) of Regulation (EC) No 1049/2001 nor can they be handled
under the deadlines and conditions stipulated in that regulation14. They do not only create
an
extremely
heavy
workload
for
several
staff
members
of
the
Secretariat-General, but they also cause a serious perturbation in its functioning.
Any public administration with limited resources has the obligation to safeguard the
interests of good administration and to ensure the proper handling of confirmatory
applications originating from other applicants. This has been repeatedly acknowledged
by the Court of Justice. In the case at hand, it flows from the principle of proportionality
that processing this and the other requests simultaneously received by the European
Commission
would
involve
an
inappropriate
administrative
burden.
The ‘self explanatory’ interest you have in receiving the requested documents has to be
balanced against the workload resulting from the processing of these and your
applications for access in order to safeguard the interests of good administration15.
14 In its judgment
Ryanair v
European Commission, the General Court recognised the principle that the
volume of documents concerned under several applications for access to documents can be considered
together, where these applications were made to the European Commission almost simultaneously,
from the same applicant and covering cases which were connected. Please see Judgment of the
General Court of 10 December 2010,
Ryanair v
European Commission, T-494/08, EU:T:2010:511,
paragraphs 34 and 37.
15 Judgments of the Court of Justice of 6 December 2001,
Council v
Hautala, C‑ 353/99 P,
EU:C:2001:661, paragraph 30, and
Guido Strack v
European Commission, cited above, paragraph 27.
7
In this particular case, the volume of your requests, their wide scope and their
simultaneous introduction created an administrative burden which was particularly heavy
and exceeded the limits of what may reasonably be required.
The Court of Justice recognised in its judgment in
Guido Strack v
European
Commission 16 that in case of wide-scope requests (requests that involve a very long
document or to a very large number of documents) ‘institutions may, in particular cases
in which the volume of documents for which access is applied or in which the number of
passages to be censured would involve an inappropriate administrative burden, balance
the interest of the applicant for access against the workload resulting from the processing
of the application for access in order to safeguard the interests of good administration’.
This practice was also recognised by the Court in its judgment in
EnBW Energie
Baden-Württemberg v
European Commission 17.
Notwithstanding the fact that you were not obliged to provide any reasons for your
request, you did provide a justification in saying that ʻthe purpose of the academic study
is the systematic study of Commission responses at the confirmatory application stageʼ.
This statement does explain your particular personal interest in the requested documents.
Moreover, you contest the fact that the Secretariat-General did not engage more with you
with the view of agreeing a fair solution with you. In the case of a wide-scope
application, the institution has to adopt a final decision within the time limits laid down
in Regulation (EC) 1049/2001. ʻAlthough, in such a case, Article 6(3) allows the
institution concerned to find a fair solution with the applicant seeking access to
documents in its possession, that solution can concern only the content or the number of
documents applied forʼ, but not the deadlines for replying18.
On 13 January 2020, when you replied to the fair solution proposal of the
Secretariat-General, the remaining time limit to reply to your initial applications was 13
working days. Striving to provide you with a reply respecting the legal time limits
imposed by Regulation (EC) No 1049/2001, the Secretariat-General proceeded to the
specific and individual examination of the number of documents it could reasonably
handle in the remaining time, namely the 30 confirmatory decisions, which were last
adopted in the year 2018. This was particularly possible due to a huge effort of the
responsible desk officer handling your initial requests and taking into account the nature
of the documents requested, namely confirmatory decisions, and the fact that you agreed
to exclude their annexes from the scope of your request.
Regarding your intention to challenge its unilateral solution, please note that given the
context described above, I consider that the unilateral restriction of the scope of your
requests was justified.
16
Guido Strack v
European Commission, cited above, paragraphs 26-28.
17 Judgment of the General Court of 22 May 2012,
EnBW Energie Baden-Württemberg v
European
Commission, T-344/08 P, EU:T:2012:242, paragraph 105.
18
Guido Strack v
European Commission, cited above, paragraph 26.
8
Consequently,
I
conclude
that
the
decision
of
the
Secretariat-General to unilaterally restrict the scope of your initial applications was in
line with the principle of proportionality and consistent with the applicable case law of
the EU Courts.
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
Ilze JUHANSONE
Secretary-General
9
Document Outline