Ref. Ares(2020)2244932 - 27/04/2020
Ref. Ares(2020)7898951 - 23/12/2020
EUROPEAN COMMISSION
LEGAL SERVICE
INST Team (Institutions)
Brussels 27 April 2020
sj f(2020)2572816
NOTE FOR THE ATTENTION OF TATJANA VERRIER,
DIRECTOR SG - C
Subject:
Electronic notification of replies to initial requests for access to
documents
I would like to make reference to your Note of the 7 April 2020 (ARES (2020)1968909)
wherein you asked the Legal Service, in the context of the ongoing business analysis of
the EASE project, guidance concerning the notification by electronic means of initial
replies to applicants for access to documents submitted on the basis of Regulation (EC)
No 1049/2001. This note exposes the views of the Legal Service to the specific questions
you raised.
General remarks
In your note, you refer to some of the technical features of the proposed EASE portal,
however, the modalities for the use of the EASE portal by the applicants are not
described in detail. One could assume, however, that similar to other electronic portals,
access to the EASE Portal would be granted to members of the public only after a
registration procedure through individual accounts. As both questions relate to the legal
effects of the
transmission
of documents through the dedicated EASE Portal to the
applicants, I would like to recall that the
terms and conditions which the users of the
EASE system will be asked to accept during the registration procedure are relevant to
provide an accurate reply to the questions you raise. These conditions normally contain
specific provisions with regard to the sending and receipt of documents and alternative
arrangements for the submission of applications and delivery of documents in case of
technical failure of the IT system.
Additionally, I note that, whilst you state “
The electronic notification offered by the new
EASE portal would allow the Commission to know the exact time when the applicant not
only received the initial reply on the EASE portal but also when he/she opened the file
containing the initial reply and became aware of it”, it remains unclear what kind of
proof (if any) the EASE Portal would retain for the receipt of the transmitted
document(s) in case the recipient user would not take any positive action i.e. open or
download the file. In these cases, it is essential, for the correct and unambiguous
application of the timelines provided for in the applicable legislation, that the terms and
conditions for the use of the EASE Portal specify when users will be deemed to have
received the documents transmitted. In fact, the Commission would need to be in
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
possession of a proof of
the receipt of the transmitted documents in all cases, not only
when the user downloads the document from the system but when the recipient remains
inactive and does not manually open the file transmitted through the EASE Portal.
Question 1) “if the initial application is submitted via future online EASE portal, can
the initial reply be sent to the applicant only via the EASE portal, that is, without the
postal notification?”
I would like to confirm that, in accordance with the provisions of Regulation (EC) No
1049/2001, it is possible to envisage the use of a digital platform such as the proposed
EASE Portal. In fact, the legislation does not mandate any specific modalities for the
submission of the application for access to documents (cf.: Article 6(1)
“…applications
for access to documents can be made in any written form, including electronic form…”).
Article 10(1) of Regulation (EC) No 1049/2001 provides that the applicant shall have
access to the requested documents either “
by consulting them on the spot or by receiving
a copy, including, where available, an electronic copy”.
Therefore, a digital platform such as the EASE Portal could be used in order to receive
requests for access to documents and also to deliver to the applicants electronic copies of
the requested documents,
provided that it ensured legal certainty as to the date in which
the initial reply was received by the applicant. In fact, the provisions of the legislation
establish a set deadline for the submission of a confirmatory application and therefore the
period in which the applicant can challenge the initial reply with a confirmatory
application starts running from the date in which the applicant has received the reply.
As highlighted above, in the context of the EASE Portal, it is important to clarify that the
date in which a document/reply was delivered or made available through the IT platform
to the applicant cannot be understood as the “date of receipt”. Such a proof of receipt
would entail a record showing that the documents have been delivered at a specific date
from which the time-limits set out in Regulation (EC) No 1049/2001 for submitting a
confirmatory application can unequivocally start to run (for example, this can be an
electronic acknowledgment of receipt generated when the document is downloaded or
after a certain period of time indicated in the terms and conditions).
In addition, if the EASE Portal, and its conditions of use, were to be designed in such a
way as to guarantee that the Commission can maintain a record of the acknowledgment
of receipt of documents transmitted via the Portal, we consider problematic the
coexistence of two notifications dates regarding confirmatory decisions – a first date
following the downloading of the decisions on the EASE portal and the date of the DHL
notification - and suggest considering a synchronized extension of the use of the EASE
Portal also to the submission of confirmatory applications by users and to notify them of
confirmatory decisions. In the current configuration, the system runs the risk of creating
uncertainties as to the date of the notification of confirmatory decisions, which is a matter
determined by reference to the factual circumstances in which the decision is received by
the applicant. Moreover, in practice, the systematic notification via DHL will probably
become largely superfluous since it may be assumed that, in most cases, applicants will
download confirmatory decisions on the EASE portal before receiving the documents by
DHL.
It should be also flagged that the EASE project offers an innovative way for citizens to
submit applications under Regulation (EC) No 1049/2001 and to have access to the
documents requested by using a dedicated IT platform. It is therefore recommended that,
once the technical aspects of the EASE Portal are finalized and in any case before it is
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