Ref. Ares(2020)6825073 - 17/11/2020
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR COMMUNICATIONS NETWORKS, CONTENT AND
TECHNOLOGY

  The Director-General
Brussels, 17th November 2020
CNECT.R.4

Margarida da Silva
Corporate Europe Observatory
Rue d'Edimbourg 26
1050 Belgique

Advance copy via email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
REGISTERED LETTER WITH ACKNOWLEDGEMENT OF RECEIPT
Subject: Your access to documents request with RefGestDem 2020/5912

Dear Ms da Silva,
We  refer  to  your  e-mail  of  6  October  2020  wherein  you  make  a  request  for  access  to
documents pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of
the  Council  of  30  May  2001  regarding  public  access  to  European  Parliament,  Council
and  Commission  documents  (hereinafter  ‘Regulation  1049/2001’),  registered  under  the
abovementioned reference number. We also refer to our holding reply, dated 27 October
2020,  our  reference  Ares(2020)5973985,  whereby  we  informed  you  that  the  time  limit
for handling your application was extended by 15 working days pursuant to Article 7(3)
of Regulation 1049/2001.
1.
SCOPE OF YOUR APPLICATION
By your application, you requested access to documents:
‘[…] documents:
  relating to policies or processes to guarantee the independence and/or managing
potential conflicts of interest at the European Digital Media Observatory;
  relating  to  the  process  of  recruiting  and  vetting  members  of  the  administrative
and executive boards of the European Digital Media Observatory;
  Any assessment by DG CNECT of the independence and governance policies of
the  winning  application  for  the  European  Digital  Media  Observatory  tender.
[…]’

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx

2.
DOCUMENTS FALLING WITHIN THE SCOPE OF THE REQUEST
We identified the following documents as falling within the scope of your request:
  Annex  to  the  Commission  Implementing  Decision  amending  a  Multi-Annual
Work  Programme  2019  and  2020  for  financial  assistance  in  the  field  of
Connecting  Europe  Facility  (CEF)  Telecommunications  sector  (C(2020)  1078
final) (our ref. Ares(2019)7283811) (Document 1)
  Call  for  Tenders  European  Digital  Media  Observatory  -  Smart  2019/1087  (our
ref. Ares(2019)6069275 ) (Document 2)
  Evaluation Report European Digital Media Observatory - Smart 2019/1087 (our
ref. Ares(2020)1781062) (Document 3)
  EDMO Governance Body and Charter of the Governance Body of the European
Digital Observatory (our ref. Ares(2020)4756992) (Document 4)
3.
ASSESSMENT UNDER REGULATION 1049/2001
Following an examination of the identified documents under the provisions of Regulation
1049/2001 and taking into account the opinion of the third party, we have arrived at the
conclusion that full access can be granted to two documents, partial access can be granted
to one document and disclosure is refused for one document. Partial and full disclosure is
prevented  by  exceptions  to  the  right  of  access  laid  down  in  Article  4  of  Regulation
1049/2001.
A. Full disclosure
Documents 1 and 2 are fully disclosed. They are available via the following links:
Document 1: https://ec.europa.eu/digital-single-market/en/news/amended-cef-telecom-
multi-annual-work-programme-2019-2020-adopted
Document 2: https://etendering.ted.europa.eu/document/document-file-
download.html?docFileId=69308
Please be informed that, in particular, pages 71-75 of Document 1 and pages 15,16,18,21,
34 and 35 are relevant to your request.
B. Partial disclosure
(i) Protection of privacy and integrity of individuals
Full disclosure of Document 4 is prevented by the exception concerning the protection of
privacy and integrity of the individual outlined in Article 4(1)(b) Regulation 1049/2001,
since they contain the following personal data:
- Names, functions and contact information of other natural persons;
Article  9(1)(b)  of  the  Data  Protection  Regulation1  does  not  allow  the  transmission  of
these personal data, except if you prove that it is necessary to have the data transmitted to

1   Regulation (EU) 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,
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you for a specific purpose in the public interest and where there is no reason to assume
that the legitimate interests of the data subject might be prejudiced. In your request, you
do not express any particular interest to have access to these personal data nor do you put
forward  any  arguments  to  establish  the  necessity  to  have  the  data  transmitted  for  a
specific purpose in the public interest.
Consequently, I conclude that, pursuant to Article 4(1)(b) Regulation 1049/2001, access
cannot be granted to the personal data contained in the requested documents, as the need
to obtain access thereto for a purpose in the public interest has not been substantiated and
there is no reason to think that the legitimate interests of the individuals concerned would
not be prejudiced by disclosure of the personal data concerned.
C. Non-disclosure
We  regret  to  inform  you  that  access  to  Document  3  cannot  be  granted  as  disclosure  is
prevented  by  exceptions  to  the  right  of  access  laid  down  in  Article  4  of  Regulation
1049/2001.
Parts  of  this  document  are  covered  by  the  exception  of  Article  4(2)  first  indent  of
Regulation  1049/2001  which  provides  that  the  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.
This provision must be interpreted in light of Article 339 of the Treaty of the Functioning
of the European Union (TFEU), which  requires staff members of the EU  institutions to
refrain from disclosing information of the kind covered by the obligation of professional
secrecy, in particular information about undertakings, their business relations or their cost
components.
These parts of the document contain sensitive business information relating to the tender
description  which  is  based  on  the  organisation's  specific  know-how  and  to  technical
aspects  of  the  tender.  Disclosure  of  these  parts  of  the  document  would  undermine  the
tenderer’s competitive position in the market and seriously affect its commercial interest,
including intellectual property rights.
Furthermore,  parts  of  Document  3  are  covered  by  the  exception  of  Article  4(3)  second
subparagraph  of  Regulation  1049/2001  which  provides  that  ‘[a]ccess  to  a  document,
containing  opinions  for  internal  use  as  part  of  deliberations  and  preliminary
consultations within the institution concerned shall be refused even after the decision has
been  taken  if  disclosure  of  the  document  would  seriously  undermine  the  institution’s
decision-making process, unless there is an overriding public interest in disclosure’.
These parts of the document contain opinions for internal use as part of deliberations and
preliminary  consultations.  Their  disclosure  would  undermine  the  institution's  decision-
making  process  linked  to  the  selection  of  tenders  for  procurement  and/or  proposals  for
grants.    The  Commission  services  must  be  free  to  explore  all  possible  options  in  the
evaluation  of  tenders  free  from  external  pressure.  The  risk  of  disclosing  sensitive
information  regarding  the  Commission  services’  evaluation  of  tenders  would  deter
Commission  services  from  putting  forward  their  views.  The  remaining  parts  of

bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No
45/2001 and Decision No 1247/2002/EC, OJ L 295, 21.11.2018, p. 39.
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Document  3  fall  outside  the  scope  of  the  request.  Therefore,  access  to  this  document
must be refused.
4.
OVERRIDING INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) and Article 4(3) of Regulation 1049/2001 apply,
unless  there  is  an  overriding  public  interest  in  the  disclosure  of  documents.  Such  an
interest  must,  firstly,  be  a  public  interest  and,  secondly,  outweigh  the  harm  caused  by
disclosure. We have examined whether there could be an overriding public interest in the
disclosure  of  the  aforementioned  parts  of  the  documents  but  we  have  not  been  able  to
identify such an interest.
5.
REUSE OF DOCUMENTS
You  may  reuse  Documents  1  and  2  which  have  been  produced  by  the  European
Commission free of charge and for non-commercial and commercial purposes provided
that  the  source  is  acknowledged  and  that  you  do  not  distort  the  original  meaning  or
message  of  the  documents.  Please  note  that  the  Commission  does  not  assume  liability
stemming from the reuse.
Document 4 originates from a third party. Please note that it is disclosed to you based on
Regulation (EC) No 1049/2001. However, this disclosure is without prejudice to the rules
on intellectual property, which may limit your right to reproduce or exploit the released
documents  without  the  agreement  of  the  originators,  who  may  hold  an  intellectual
property  right  on  them.  The  European  Commission  does  not  assume  any  responsibility
from their reuse.
6.
CONFIRMATORY APPLICATION
In  accordance  with  Article  7(2)  of  Regulation  (EC)  No  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 Secretariat-General of the Commission at the following address:
European Commission
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1)
BERL 7/076
B-1049 Bruxelles or by email to: xxxxxxxxxx@xx.xxxxxx.xx

Yours sincerely,
(e-signed)
Roberto Viola
Enclosures:
(3)

4
Electronically signed on 16/11/2020 17:21 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482

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