EUROPEAN COMMISSION
Brussels, 20.4.2021
C(2021) 2896 final
Ms Jana Leutner
50 Annenstrasse
10179 Berlin
Germany
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2020/5968
Dear Ms Leutner,
I refer to your letter of 20 November 2020, registered on 21 November 2020, in which
you submitted 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 ‘Regulation (EC) No 1049/2001’).
1.
SCOPE OF YOUR REQUEST
In your initial application of 7 October 2020, addressed to the Directorate-General for
Financial Stability, Financial Services and Capital Markets Union, you requested access
to:
‘1. The interims study by BlackRock that is due regarding the contract on
"Development of Tools and Mechanisms for the Integration of ESG Factors into
the EU Banking Prudential Framework and into Banks' Business Strategies and
Investment Policies". The tender specifications state that, "the interim study shall
be submitted by the contractor to the contracting authority within 6 months after
the date on which the contract entered into force." as the contract award notice
was published in April 2020, the interim study should be out in October 2020.
1 OJ L 345, 29.12.2001, p. 94.
2 OJ L 145, 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
2. The comments by DG FISMA and if relevant other directorates in the
European Commission on the interim study as soon as they are out. The tender
specifications state that, “the contracting authority will comment on the document
submitted within 30 days after the date of its reception”.’
The Directorate-General for Financial Stability, Financial Services and Capital Markets
Union has identified the following documents as falling under the scope of your request:
Preliminary draft interim study ‘Development of tools and mechanisms for
the integration of environmental, social and governance (ESG) factors into
the EU banking prudential framework and into banks' business strategies
and investment policies’ as submitted by BlackRock Investment
Management Ltd to the European Commission’s services on 1 October
2020, reference Ares(2020)5179373 (hereafter ‘document 1’);
Cover email from the European Commission containing general comments
on the draft interim study, 16 October 2020, reference
Ares(2020)5607455
(hereafter ‘document 2’), which includes the following annex:
o
Preliminary draft interim study ‘Development of tools and
mechanisms for the integration of environmental, social and
governance (ESG) factors into the EU banking prudential
framework and into banks' business strategies and investment
policies’ containing detailed revisions (hereafter ‘document 2.1’);
In its initial reply of 9 November 2020, the Directorate-General for Financial Stability,
Financial Services and Capital Markets Union refused access to these documents based
on the exceptions of the first subparagraph of Article 4(3) (protection of the decision-
making process) of Regulation (EC) No 1049/2001.
In your confirmatory application, you request a review of this position. You underpin
your request with detailed arguments, which I will address in the corresponding sections
below.
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 review, the following documents have been identified at confirmatory
stage as falling within the scope of your request:
Preliminary draft interim study ‘Development of tools and mechanisms for
the integration of environmental, social and governance (ESG) factors into
the EU banking prudential framework and into banks' business strategies
and investment policies’ as submitted by BlackRock Investment
2
Management Ltd to the European Commission’s services on 16 October
2020, reference
Ares(2020)5604451 (hereafter ‘document 3’);
Email from the European Commission containing comments on the draft
interim study, 30 October 2020, reference Ares(2020)6162102 (hereafter
‘document 4’);
Final interim study ‘Development of tools and mechanisms for the
integration of environmental, social and governance (ESG) factors into the
EU banking prudential framework and into banks' business strategies and
investment policies’ as submitted by BlackRock Investment Management
Ltd to the European Commission’s services on 8 December 2020,
reference Ares(2020)7459441 (hereafter ‘document 5’).
I can inform you that full access is granted to document 5.
As regards documents 1, 2, 2.1, 3 and 4, I regret to inform you that I have to confirm the
initial decision of Directorate-General for Financial Stability, Financial Services and
Capital Markets Union to refuse access, based on the exceptions of Article 4(1)(b)
(protection of the privacy and the integrity of the individual), the first indent of
Article 4(2) (protection of commercial interests) and the first subparagraph of
Article 4(3) (protection of the decision-making process) of Regulation (EC) No
1049/2001, for the reasons set out below.
2.1. Protection of privacy and the integrity of the individual
Article 4(1)(b) of Regulation (EC) No 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’.
In its judgment in Case C-28/08 P (
Bavarian Lager)3, the Court of Justice ruled that
when a request is made for access to documents containing personal data, 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 data4
(hereafter ‘Regulation (EC) No 45/2001’) becomes fully applicable.
Please note that, as from 11 December 2018, Regulation (EC) No 45/2001 has been
repealed by 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, bodies, offices and agencies and on the free
3 Judgment of the Court of Justice of 29 June 2010,
European Commission v
The Bavarian Lager Co.
Ltd (hereafter referred to as
‘European Commission v
The Bavarian Lager judgment’) C-28/08 P,
EU:C:2010:378, paragraph 59.
4 OJ L 8, 12.1.2001, p. 1.
3
movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No
1247/2002/EC5 (hereafter ‘Regulation (EU) 2018/1725’).
However, the case law issued with regard to Regulation (EC) No 45/2001 remains
relevant for the interpretation of Regulation (EU) 2018/1725.
In the above-mentioned judgment, the Court stated that Article 4(1)(b) of Regulation
(EC) No 1049/2001 ‘requires that any undermining of privacy and the integrity of the
individual must always be examined and assessed in conformity with the legislation of
the Union concerning the protection of personal data, and in particular with […] [the
Data Protection] Regulation’6.
Article 3(1) of Regulation (EU) 2018/1725 provides that
personal data ‘means any
information relating to an identified or identifiable natural person […]’.
As the Court of Justice confirmed in Case C-465/00 (
Rechnungshof), ‘there is no reason
of principle to justify excluding activities of a professional […] nature from the notion of
private life’7.
Documents 2 and 4 contain personal data such as the names, addresses and phone
numbers of persons who do not form part of the senior management of the European
Commission. Moreover, it contains names of third party interlocutors.
The names8 of the persons concerned as well as other data from which their identity can
be deduced undoubtedly constitute personal data in the meaning of Article 3(1) of
Regulation (EU) 2018/1725.
Pursuant to Article 9(1)(b) of Regulation (EU) 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 competing interests’.
Only if these conditions are fulfilled and the processing constitutes lawful processing in
accordance with the requirements of Article 5 of Regulation (EU) 2018/1725, can the
transmission of personal data occur.
5 OJ L 295, 21.11.2018, p. 39.
6
European Commission v The Bavarian Lager judgment,
cited
above, paragraph 59.
7 Judgment of the Court of Justice of 20 May 2003,
Rechnungshof and Others v
Österreichischer
Rundfunk, Joined Cases C-465/00, C-138/01 and C-139/01, EU:C:2003:294, paragraph 73.
8
European Commission v
The Bavarian Lager judgment, cited above, paragraph 68.
4
In Case C-615/13 P
(
ClientEarth), the Court of Justice ruled that the institution does not
have to examine by itself the existence of a need for transferring personal data9. This is
also clear from Article 9(1)(b) of Regulation (EU) 2018/1725, which requires that the
necessity to have the personal data transmitted must be established by the recipient.
According to Article 9(1)(b) of Regulation (EU) 2018/1725, the European Commission
has to examine the further conditions for the lawful processing of personal data only if
the first condition is fulfilled, namely if the recipient establishes 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 confirmatory 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, the European Commission does not have to examine whether there is a reason
to assume that the data subjects’ legitimate interests might be prejudiced.
Notwithstanding the above, there are reasons to assume that the legitimate interests of the
data subjects concerned would be prejudiced by the disclosure of the personal data
reflected in the documents, as there is a real and non-hypothetical risk that such public
disclosure would harm their privacy and subject them to unsolicited external contacts.
Consequently, I conclude that, pursuant to Article 4(1)(b) of Regulation (EC) No
1049/2001, access cannot be granted to the personal data, 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 the disclosure of the personal data concerned.
2.2. Protection of the commercial interests of a natural or legal person and of the
decision-making process
The first indent of Article 4(2) of Regulation (EC) No 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’.
The first subparagraph of Article 4(3) of Regulation (EC) No 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’
.
9 Judgment of the Court of Justice of 16 July 2015,
ClientEarth v
European Food Safety Agency,
C-615/13 P, EU:C:2015:489, paragraph 47.
5
In accordance with the case-law of the Court of Justice, ‘a European Union institution
may take into account cumulatively more than one of the grounds for refusal set out in
Article 4 of Regulation No 1049/2001 when assessing a request for access to documents
held by it’10. Accordingly, the exceptions relating to the protection of the decision-
making process and of commercial interests are, in the present case, closely connected.
The documents you request are related to an ongoing public contract for a study on the
development of tools and mechanisms for the integration of ESG factors into the EU
Banking Prudential Framework and into banks’ business strategies and investment
policies. This contract was awarded to BlackRock Investment Management Ltd
following the tender procedure FISMA/2019/024/D. For the successful realisation of the
contract and, consequently, of the study, it is essential that the Commission and
BlackRock maintain a frank and open communication in a climate of confidence, free
from external pressure.
The confidentiality of the exchanges is also emphasised in part II.8 of the published
general conditions of the service contract11. More specifically, according to paragraph
II.8.1 ‘[t]he contracting authority and the contractor must treat with confidentiality any
information or documents, in any format, disclosed in writing or orally relating to the
performance of the contract and identified in writing as confidential.’ The contractor has
explicitly identified the preliminary drafts of the study as confidential in writing,
according to the paragraph stipulated above, and the European Commission is bound to
its contractual obligations to keep this information confidential.
Documents 1 and 3 constitute different preliminary draft versions of the study that have
not been validated, submitted by BlackRock to the Commission pursuant to the contract.
Documents 2, 2.1 and 4 consist of more general, as well as very detailed, comments from
Commission services on certain parts of the draft report, either collated in an email
exchange (in documents 2 and 4), or as ‘track changes’ in the draft report itself (in
document 2.1). Following significant progress on the study, the Directorate-General for
Financial Stability, Financial Services and Capital Markets Union of the European
Commission decided to validate an interim version of the study submitted by BlackRock
on 8 December 2020 (document 5) and proactively published it after seeking agreement
from its author.
The preliminary draft versions of the study (documents 1 and 3) contain preliminary data
and assessments, which have been subsequently modified and consolidated into the final
interim study (document 5). The preliminary drafts that have not been validated are based
on preliminary or incomplete data and analysis and their release would put in the public
domain misleading data, considerations and conclusions. Their release could generate
confusion and there is a real and foreseeable risk that these documents could be
erroneously mistaken for a final position of the Commission, which could put
10 Judgment of the General Court of 13 September 2013,
Netherlands v
Commission, T-380/08,
EU:T:2013:480, paragraphs 26 and 34.
11 Available
at https://etendering.ted.europa.eu/cft/cft-documents.html?cftId=5201.
6
unwarranted pressure on the European Commission or BlackRock Investment
Management.
The comments are provided by individual staff members of the Commission on the
preliminary draft version of the study (in documents 2, 2.1 and 4) and they do not engage
the institution nor present its official position on the matter. They contain general and
detailed frank comments on the methodology used, on the level of detail of certain
sections, pointing out inconsistencies in the data or in certain passages etc. Public access
to the relevant documents is likely to bring a serious harm to the institution’s decision-
making process, as it would deter members of the European Commission from putting
forward their views on the above-referred and other related matters in an open and
independent way and without being unduly influenced by the prospect of disclosure.
Please note that the jurisprudence of the Union Courts has recognised that the capacity of
the staff of the institutions to express their opinions freely must be preserved, to avoid the
risk that the disclosure would lead to future self-censorship. Indeed, as the General Court
has held, ‘the possibility of expressing views independently within an institution helps to
encourage internal discussions with a view to improving the functioning of that
institution and contributing to the smooth running of the decision-making process’12.
Moreover, public disclosure of these comments would also undermine the commercial
interest of BlackRock by disclosing its methodology, the winning tenderer used for the
purpose of drafting the study. Moreover, negative or critical comments could also
undermine the reputation of the company.
Indeed, the General Court confirmed on several occasions that the protection of a
commercial undertaking's reputation can require the (partial) refusal of documents based
on Article 4(2), first indent of Regulation 1049/200113.
Consequently, I consider that the use of the exceptions under the first indent of Article
4(2) (protection of commercial interests) and the first subparagraph of Article 4(3)
(protection of the ongoing decision-making process) of Regulation (EC) No 1049/2001 is
justified, and that access to documents 1, 2, 2.1, 3 and 4 must be refused on that basis.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) and 4(3) of Regulation (EC) No 1049/2001
must be waived if there is an overriding public interest in disclosure. Such an interest
must, firstly, be public and, secondly, outweigh the harm caused by disclosure.
In your confirmatory application, you argue that ‘Commission’s position on how to
integrate ESG risks into banking rules should be transparent’ considering the huge
12 Judgment of the General Court of 15 September 2016,
Phillip Morris v
Commission, T-18/15,
EU:T:2016:487, paragraph 87.
13 Judgments of the General Court of 15 January 2013, Case T-392/07,
Strack v Commission,
EU:T:2013:8, paragraph 228 and of 26 April 2016, Case T-221/08,
Strack v Commission,
EU:T:2016:242, paragraph 210.
7
importance the success of the Green Deal and sustainable finance strategy has for
citizens. You further add that ‘[i]t is of major public interest to know where the
Commission stands when it comes to implement the ambitious sustainability goals it set
for itself with the announcement of the Green Deal. Granting access to the Commission’s
comments on the interim study by BlackRock is a question of respect towards EU
citizens, as well as a basic element of democratic transparency’.
These are general considerations and cannot provide an appropriate basis for establishing
that a public interest prevails over the reasons justifying the refusal to disclose the
document in question14. You do not provide sufficient arguments showing why, having
regard to the specific facts of the case, a public interest is so pressing that it overrides the
need to protect the document in question. As mentioned above, these comments reflect
the position of individual staff members and do not engage the institution as a whole.
In this context, please note that general considerations cannot provide an appropriate
basis for establishing that the principle of transparency was in this case especially
pressing and capable, therefore, of prevailing over the reasons justifying the refusal to
disclose the documents in question. In fact, I consider that the public interest has been
served in this matter by the full disclosure of the validated final interim study
(document 5).
Nor have I been able to identify any public interest capable of overriding the public and
private interests protected by Article 4(2) and 4(3) of Regulation (EC) No 1049/2001.
The fact that the documents relate to an administrative procedure and not to any
legislative act, for which the Court of Justice has acknowledged the existence of wider
openness15, provides further support to this conclusion.
Please note also that Article 4(1)(b) of Regulation (EC) No 1049/2001 does not include
the possibility for the exceptions defined therein to be set aside by an overriding public
interest.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting partial access to the documents requested.
However, for the reasons explained above, no meaningful partial access can be granted to
documents 1, 2, 2.1, 3 and 4 without undermining the interests described above.
14 Judgment of the Court of Justice of 14 November 2013,
Liga para a Protecção da Natureza (LPN) and
Republic of Finland v European Commission, Joined Cases C-514/11 P and C-605/11 P,
EU:C:2013:738, paragraph 93.
15 Judgment of the Court of Justice of 29 June 2010,
Commission v
Technische Glaswerke Ilmenau Gmbh,
C-139/07 P, EU:C:2010:376, paragraphs 53-55 and 60;
Commission v
Bavarian Lager judgment, cited
above, paragraphs 56-57 and 63.
8
Providing partial access to the preliminary draft versions of the interim report, that were
marked as confidential by the contractor, would allow for a comparison with the final
validated report, giving a clear indication on what parts and what issues the Commission
was discussing with the contractor, which in turn would open up both parties to external
pressure and jeopardise the successful completion of the contract.
Consequently, I have come to the conclusion that the documents requested are covered in
their entirety by the invoked exceptions to the right of public access.
As regards document 5, this is fully disclosed. Please note that this document is a study
carried out by external experts. It does not reflect the position of the Commission and
cannot be quoted as such.
5.
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
Enclosures: (1)
9
Document Outline