Ref. Ares(2020)7043344 - 24/11/2020
EUROPEAN COMMISSION
Brussels, 29.7.2019
C(2019) 5831 final
Corporate Europe Observatory
Rue d’Edimbourg 26
1050 Brussels
Belgium
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 2019/1315
Dear
I refer to your email of 24 May 2019, registered on the same day, 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
documents2 (hereafter ‘Regulation (EC) No 1049/2001’).
1.
SCOPE OF YOUR REQUEST
In your initial request of 7 March 2019, addressed to the Directorate-General for
Communication Networks, Content and Technology, you requested access to:
- ‘a list of lobby meetings held by this DG, with Facebook or its intermediaries.
The list should include: date, individuals attending and organisational affiliation,
as well as the issues discussed;
- all minutes and other reports of these meetings;
- all correspondence including attachments (i.e. any emails, correspondence or
telephone call notes) between […] DG (including the Commissioner and the
Cabinet) and Facebook or any intermediaries representing its interests; and
1
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
- all documents prepared for the purpose of the meeting and/or exchanged during
the course of the meeting’.
These documents should cover the period between 26 April 2018 and the date of the
request.
Since 46 simultaneous requests for access to documents concerning meetings between
several Directorates-General of the European Commission and Amazon, Google,
Microsoft or Facebook were introduced on behalf of your organisation, Corporate Europe
Observatory, the Secretariat-General sent you a fair solution proposal on 26 March 2019,
registered under reference Ares(2019)2103936.
In this proposal, the Secretariat-General informed you that the European Commission has
received a very high number of very similar requests for access to documents submitted
by you but also by other applicants concerning lobby meetings held within the European
Commission with Amazon, Google, Microsoft or Facebook or persons representing their
interests. It explained that although the applicants are different entities, the requests were
almost identical and were made at the same time. The circumstances of the introduction
of these requests, their timing, their scope, as well as their wording gave the impression
that they result from a coordinated action. It referred to the Court of First Instance3 which
confirmed in its
Ryanair judgment4 that Article 6(3) of Regulation (EC) may not be
evaded by splitting an application into several, seemingly separate, parts. It informed you
that, 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.
The Secretariat-General described in detail the actions needed in order to handle these
requests and concluded that the handling of your numerous 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 replying.5 Based on Article 6(3) of Regulation (EC) No 1049/2001, it asked
you to specify your specific interest in the documents requested6, and whether you could
narrow down the scope of your request, so as to reduce it to a more manageable number. In
order to help you to narrow down your wide-scoped request, it transmitted to you lists of the
lobby meetings, which took place since 1 December 2014 between the Director-General
concerned, the Commissioner or a member of his Cabinet and Amazon, Google,
3 Now ‘General Court’.
4 Judgment of the General Court of 10 December 2010,
Ryanair v Commission, T-494/08,
EU:T:2010:511, paragraph 34.
5 Judgment of the Court of Justice of 2 October 2014,
Guido Strack v Commission, C-127/13 (hereafter
‘
Guido Strack v Commission’)
, EU:C:2014:2250, paragraphs 26-28.
6 Ibid, paragraph 28; Judgment of the General Court of 22 May 2012,
EnBW Energie Baden-
Württemberg v Commission, T-344/08, EU:T:2012:242, paragraph 105.
2
Microsoft or Facebook or any intermediaries representing their interests.7 The Secretariat-
General proposed one of the following alternative options for limiting the excessive
administrative burden relating to the handling of your wide-scoped request, made as
seemingly separate 46 simultaneous requests:
- Restrict the temporary scope of your wide-scoped request to a period of your
choice not exceeding six months and limit its scope only to the meetings
published in the Transparency Register;
- Limit the number of your seemingly separate requests to 10 requests of your
choice;
- Limit the scope of your requests to 20 meetings of your choice published in the
Transparency Register for each one of the companies you are interested in
(Google, Amazon, Microsoft and Facebook).
On 1 April 2019, you replied to the proposal indicating that you were ‘not in the position
to accept any of the solutions proposed by the Commission, which [you] consider unfair
in nature’. You stated that ‘[your] decision to file a series of separate requests to various
Directorates-General was not a covert attempt to circumvent the rules set in Regulation
1049/2001, but a deliberate choice that responds to rather basic knowledge of how EU
policy and decision making works’. You explained that ‘filing these requests separately
was a deliberate choice as each DG holds meetings with stakeholders independently and
at differentiated times. This could mean that some of the DGs [you] sent a request to
might have held numerous encounters with the stakeholders [you are] interested in, and
some might have never encountered them [and that] it is also safe to assume that each
DG has access to their own set of documents, including those that would fall under the
scope of [your] request.’ You added further that, in your view, ‘it is not reasonable to
expect each and every DG will need to undergo the same process […] in order to respond
to [your] requests. Some DGs will identify more documents than others, some of these
documents will be more sensitive than others, and some might not hold documents at all.
At the same time, some DGs might have more staff dedicated to access to documents
purposes than others, which would result in differentiated levels of effort time-wise and
human resource-wise.’
You indicated that ‘whether [yours] and other requests were or were not filed as a result
of a “coordinated action” is not incumbent in this case’. You underlined that any
‘possible “coordinated action” between [you] and other requesters, would not, in any
case, fall under the scope of the cited General Court jurisprudence. It would, however,
fall under the scope of Article 12 of the EU Charter of Fundamental Rights, which grants
EU civil society the right to assemble and associate in order to work together, in a
coordinated manner, for instance, to advance a political and civil matter such as
transparency of EU institutions.’
As to your ‘specific interest in the documents requested’, you stated that ‘the content and
the wording of [your] initial requests are self-explanatory: [you were] interested in
7 These
lists
are
publicly
available
under
the
link:
http://ec.europa.eu/transparencyregister/public/homePage.do?locale=en#en.
3
knowing about the interactions between Commission branches and Facebook, for the
sake of knowing about the interactions between Commission branches and Facebook, as
[you] believe this matter is in the public interest.’ Moreover, you referred to previous
requests you made, where solutions were accepted ‘such as, instead of reducing the scope
of the initial request, splitting the request into various individual requests to be processed
separately and consecutively’ and concluded ‘such a solution would be much more
reasonable and adequate than the ones proposed by the Commission’. Finally, you stated
that ‘a fair solution - which [you were] willing to debate and reach - would require an
agreement from the Commission on these two basis:
1. that [your] requests be processed individually by each of the DGs [you] initially
filed the requests to, with which [you would] be willing to find individual fair
solutions depending on the number of documents identified by each DG, and the
workload that [your] request would require from each DG individually;
2. that [your] requests be treated separately from any other requests, as similar as
they might be, filed previously or simultaneously. [You are] only interested in
documents related to Facebook, and the way [your] requests are handled should
reflect that limitation.
Should the European Commission - and its DGs - agree on these two basis, [you] would
of course be willing to reduce and/or limit the scope of [your] request per individual DG,
if the situation within a DG would require to do so.
On the other hand, [you have] agree[d] to limit the intermediaries [you were] interested
in to law firms and/or consultants directly representing Facebook in meetings.’
As a preliminary remark, I would like to clarify that the term ‘lobby meeting’ is defined
in Article 2 the Commission Decision of 25 November 2014 on the publication of
information on meetings held between Directors-General of the Commission and
organisations or self-employed individuals (2014/838/EU, Euratom)8 and Commission
Decision of 25 November 2014 on the publication of information on meetings held
between Members of the Commission and organisations or self-employed individuals
(2014/839/EU, Euratom)9.
The Directorate-General for Communication Networks, Content and Technology
received on the same day several requests for access to documents from you and other
applicants related to lobby meetings with Amazon, Google, Microsoft or Facebook. The
estimated number of documents identified by the Directorate-General as falling within
the scope of these requests was 185 documents, even after limiting the scope to
intermediaries of Facebook, Amazon, Microsoft or Google to law firms and/or
consultants directly representing them in meetings.
At the time of your request, the Directorate-General for Communication Networks,
Content and Technology was already processing two other requests from your
8 Official Journal L 343 of 28.11.2004, p. 19.
9 Official Journal L 343 of 28.11.2004, p. 22.
4
organisation, where it identified 15 documents as falling within the scope, and granted
(full or partial) access to all 15 documents.
In order to treat your request, and that of other applicants, the Directorate-General for
Communications Networks, Content and Technology would have to carry out a certain
number of tasks listed below:
- search for documents relating to meetings with Amazon, Google, Microsoft or
Facebook both at the level of the Directorate-General or the service concerned
and at the level of the Commissioner and his Cabinet in several document
management systems of the Commission;
- retrieval and establishment of a complete list of the documents falling under the
scope of your requests;
- scanning of the documents which are in paper format;
- 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 1049/2001
and (possibly) a further dialogue with the third party originators of documents
falling within the scope of your request;
- 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 reply for each of your requests by each of the services
concerned;
- (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.
Given the complexity of the tasks and the number of documents, amounting to 185, the
Directorate-General for Communications Networks, Content and Technology concluded
that it would not be possible to carry out the assessment required under Regulation (EC)
No 1049/2001, within the time limits provided for in that regulation.
Consequently, the Directorate-General for Communications Networks, Content and
Technology unilaterally restricted the scope of your initial application to documents
related to meetings between the Director-General or members of the Cabinet and
5
Facebook that are listed in the Transparency Register for the period 26 April 201810 and
the date of your request.
Based on the above, the Directorate-General for Communications Networks, Content and
Technology has identified the following documents as falling under the scope of your
request:
Briefing for the meeting of 11 October 2018 between Manuel Mateo Goyet,
Cabinet member of Mariya Gabriel and Facebook, reference BASIS CAB
GAB/733 (hereafter ‘document 1’);
Minutes of the meeting of 14 June 2018 between Juhan Lepassaar, Cabinet
member of Andrus Ansip and Facebook, reference Ares(2018)3379016 (hereafter
‘document 2’);
Meeting request of 26 September 2018 addressed to the Cabinet of Commissioner
Ansip, reference Ares(2018)4937231 (hereafter ‘document 3’);
Minutes of the meeting of 11 October 2018 between Juhan Lepassaar, Cabinet
member of Andrus Ansip and Facebook, reference Ares(2018)5942888 (hereafter
‘document 4’);
Meeting request of 8 January 2019 addressed to the Cabinet of Commissioner
Ansip, reference Ares(2019)81267 (hereafter ‘document 5’);
Minutes of the meeting of 28 January 2019 between Commissioner Ansip and
Facebook, reference Ares(2019)744918 (hereafter ‘document 6’);
In its initial reply of 10 May 2019, the Directorate-General for Communication
Networks, Content and Technology granted wide partial access to these documents,
subject only to the redaction of personal data, based on the exception of Article 4(1)(b)
(protection of privacy and integrity of the individual) of Regulation (EC) No 1049/2001.
In your confirmatory application, you request a review of this position. More specifically,
you only contest the unilateral restriction of the scope of the request, thus the scope of the
confirmatory decision will be limited to this aspect.
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 part of this review, the European Commission has carried out a renewed, thorough
search for possible documents falling under the scope of your request.
Based on this renewed search, the European Commission has not been able to identify
any further documents as falling within the scope of your request.
10 Please note that due to a clerical error, the temporal scope of the applications has been mistyped as
1 January 2017.
6
2.1. Unilateral restriction of the scope of the initial application
In your confirmatory application, you contest the position of the Directorate-General for
Communications Networks, Content and Technology, as regard the unilateral restriction
of the scope of your (initial) application. You also contest the fact this Directorate-
General did not engage further with a view to finding a fair solution.
As a preliminary remark, I would like to clarify, that Regulation (EC) No 1049/2001
clearly stipulates that the recipient of any request for access to documents is the
institution as such. This legal context is not altered by the fact that it is possible to send a
request for access to documents to the relevant Directorate-General or department. In
conclusion, the requests addressed to these entities continue to be requests addressed to
the European Commission and the workload related to them is also incumbent on the
European Commission.
In your confirmatory application, you underline the fact that the workload would be
divided among the Directorates-General concerned and justify herewith why you have
filed separate requests. Although your requests were addressed to separate Directorates-
General, they form a wide-scope request, as the workload they imply will have to be
assumed by the European Commission as the institution.
As mentioned above, at the time of your request, the Directorate-General for
Communication Networks, Content and Technology was already processing two other
requests from your organisation, where it identified 15 documents as falling within the
scope, and granted (full or partial) access to all 15 documents. In fact, Corporate Europe
Observatory has submitted 80 requests for access to documents this year alone, out of
which 22 requests were submitted by you personally.
Indeed, the European Commission handled simultaneously 46 from the Corporate Europe
Observatory and 45 very similar requests from other applicants whose requests had the
same wording.
You state that it is not incumbent in this case whether these requests resulted from a
coordinated action or not and refer to the right of the EU civil society ‘to assemble and
associate in order to work together, in a coordinated manner, for instance, to advance a
political and civil matter such as transparency of EU institutions’. I note that you do not
confirm or infirm that your requests form part of a coordinated action. 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.
Although any citizen or legal person has the right to request documents from an
institution, the civil society as such is not stipulated among the beneficiaries. Coordinated
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 regulation. They do not only create an
extremely heavy workload for a multitude of services, but they also cause a serious
perturbation in its functioning.
7
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 this and your other applications for
access in order to safeguard the interests of good administration.11 In this particular case,
the volume of your requests, their wide scope, their simultaneous introduction and the
circumstances under which they were introduced created an administrative burden which
was particularly heavy and exceeded the limits of what may reasonably be required.
The fact that since 2018 your organisation has filed 188 initial and confirmatory requests
only reinforces this conclusion.
In this particular case, the original scope of your initial application, covers 41 documents.
Indeed, the total number of documents corresponding to the initial scope of all the
requests addressed to the Directorate-General for Communications Networks, Content
and Technology on lobby meetings with Facebook, Amazon, Microsoft or Google
amounts to 185, with a total of about 1133 pages. 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 739 working days.
These estimates also take into account the fact that the staff concerned in the Directorate-
General for Communications Networks, Content and Technology and several other
Directorates-General would have to deal with other tasks and applications in parallel with
the handling this initial application of yours and with other several simultaneous
applications you have made, as well as other very similar applications received by other
applicants.
In your confirmatory application, you argue that according to Article 6(1) of Regulation
(EC) No 1049/2001 you are not obliged to state reasons for your application. While this
is the case for normal requests for access to documents, the Court of Justice recognised in
its judgment in
Guido Strack v Commission12 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
11 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 Commission, cited above, paragraph 27.
12
Guido Strack v Commission, cited above, paragraphs 26-28.
8
to safeguard the interests of good administration’. This practice was also recognised by
the Court in its judgment in
EnBW Energie Baden-Württemberg v Commission. 13
You further argue that, notwithstanding the fact that you weren’t obliged to provide any
reasons for your request, you did provide a justification in saying that your request was
self-explanatory, I quote: ‘I am interested in knowing about the interactions that have
taken place between EU institutions and bodies and Facebook’. However, this statement
does not explain your particular interest in the requested documents. As to the limitation
of the scope of the request to intermediaries, namely ‘law firms and/or consultants
directly representing Facebook in meetings’, this had no significant impact in reducing
the scope of your request. You do not dispute that the handling of your request would
create unreasonable workload. However, you contest the fact that the Directorate-General
for Communications Networks, Content and Technology did not engage further with you
with the view of agreeing a fair solution with you.
On 1 April 2019, when you replied to the fair solution proposal of the Secretariat-
General, the remaining time limit to reply to your initial application was 9 working days.
The Directorate-General for Communications Networks, Content and Technology was
already processing other simultaneous applications (GESTDEM 2019/1317, GESTDEM
2019/469 and GESTDEM 2019/499) from your organisation. Striving to provide you
with a reply respecting the legal time limits imposed by Regulation (EC) No 1049/2001,
the Directorate-General for Communications Networks, Content and Technology opted
to grant you wide partial access to six documents. This solution is both reasonable,
particularly given the context of your requests, and favourable to your right of access.
The practice to which you refer, namely of dealing with wide-scoped requests in batches,
is neither prescribed by Regulation (EC) No 1049/2001 nor would it be proportionate
given the context of your requests and the documents you had already received by
several other Directorates-General.
The Secretariat-General had genuinely investigated all other conceivable options to
handle with all your requests and had proposed to you several options to reduce the scope
of your request; however, none of these options was acceptable to you. Since you have
not explained in detail your particular interest, as requested, the Directorate-General for
Communications Networks, Content and Technology proceeded to the specific and
individual examination of the number of documents it could reasonably handle in the
remaining time.
Please note that according to the case law of the EU Court (referred to also in the initial
reply of the Directorate-General for Communications Networks, Content and
Technology), the fair solution under Article 6(3) of Regulation (EC) No 1049/2001 may
concern only the number and content of the documents applied for but not the deadline
for replying. 14
13 Judgment of the General Court of 22 May 2012,
EnBW Energie Baden-Württemberg v Commission,
T-344/08 P, EU:T:2012:242, paragraph 105.
14 Judgment in
Guido Strack v Commission, cited above, paragraph 26.
9