Ref. Ares(2020)7043344 - 24/11/2020
EUROPEAN COMMISSION
Brussels, 31.7.2019
C(2019) 5893 final
Corporate Europe Observatory
Rue d'Edimbourg 26
1050 Bruxelles
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 2019/0939
Dear
I refer to your letter of 17 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 application of 14 February 2019, addressed to the Directorate-General for
Environment, you requested access to ‘a list of all lobby meetings held by DG
Environment since 31 May 2018 where single-use plastics were discussed. The list
should include the names of the individuals and organisations attending; the date; and
any minutes / notes produced. I would additionally like to receive any emails or other
correspondence related to these meetings’.
The European Commission has identified a list of meetings and several documents
related to these meetings.
In its initial reply of 15 May 2019, the Directorate-General for Environment granted full
access to the list and wide partial access to 21 documents subject to the redaction of
personal data based on Article 4(1)(b) of Regulation (EC) No 1049/2001 mentioned
above.
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
However, access was refused to the following two documents based on the exception of
the first indent of Article 4(2) (protection of commercial interests of a natural or legal
person, including intellectual property) of Regulation (EC) No 1049/2001:
– List item no. 18: a document prepared by PricewaterhouseCoopers and submitted to
the meeting of Unit B.1 of Directorate-General for Environment with Coca-Cola
European Partners on 23 November 2018, reference Ares(2018)6211158 (hereafter
‘document 1’); and
– List item no. 22: a document prepared by TetraPak for its meeting of
and Unit B.1 of Directorate-General for Environment on 30 November
2018, reference Ares(2018)6236948 (hereafter ‘document 2’, document 1 and
document 2 hereafter together ‘requested documents’ ).
In your confirmatory application, you request a review of the initial decision in relation
to these two documents only. You do not contest the redaction of personal data.
Therefore, the scope of the confirmatory review is limited to the requested documents.
You support your request with detailed arguments, which I will address to the extent
necessary 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.
Please note that as the requested documents originated from third parties, the
Commission had to consult, in line with Article 4(4) of Regulation (EC) No 1049/2001,
these third parties as originators of the requested documents.
Following this review, I can inform you that:
– full access is granted to document 1; and
– wide partial access is granted to document 2 subject to redactions based on the
exception of the first indent of Article 4(2) (protection of commercial interests of a
natural or legal person, including intellectual property) of Regulation (EC)
No 1049/2001, for the reasons set out below.
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’.
2
The redacted data in document 2 outline the breakdown of investment that an individual
company foresees in order to achieve compliance with new regulations. Disclosing
information on the expected compliance cost of a single market player would affect the
competitive position of that company vis-á-vis its competitors, as it would reveal details
of its financial planning in the context of its compliance strategy. In particular, it would
reveal the breakdown of its development spending, capital investment and human
resources devoted to compliance in each of the different phases of the production: project
and concept definition, prototype development, product validation and global
deployment. Such disclosure might have significant effects in relation to the competitive
position of the company.
As the Court of Justice established, ‘information may be considered to be sensitive
commercial information the disclosure of which would be likely to harm the commercial
interests of the undertakings operating such facilities, since such data is significant of the
costs borne by the undertakings concerned and, by therefore, their competitive position’.3
Thus, the case-law confirms that certain parts of document 2 cannot be disclosed without
undermining the protection of the commercial interests of the company concerned.
Therefore, I conclude that partial access can be granted to document 2 by redacting the
data that form part of the predicted compliance cost analysis of the company concerned.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in the first indent of Article 4(2) 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 ‘[t]he issues relating to tethered caps,
packaging sizes, and which products were to be regulated, were very significant during
the negotiations on the Commission’s single use plastics proposal, and we are aware that
substantial lobbying went on, demonstrating that there is a strong public interest for such
information to be in the public domain.’
The above considerations do not prove that the disclosure of the withheld parts of
document 2 constitute an overriding public interest that outweighs the interest of the
company concerned to protect its commercially sensitive data, which, if disclosed, would
actually and non-hypothetically risk to cause damages to the company concerned.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, partial access has
been granted to document 2.
3 Judgment of the General Court of 11 July 2018,
Rogesa v Commission, T-643/13, EU:T:2018:423,
paragraph 77.
3