Ref. Ares(2020)7713635 - 17/12/2020
EUROPEAN COMMISSION
Brussels, 27.9.2019
C(2019) 7105 final
,
1000 Brussels
Belgium
New York,
NY 10018
United States
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 2019/2556
Dear
, dear
,
I refer to your letter of 3 July 2019, registered on 4 July 2019, 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 29 April 2019, addressed to the Directorate-General for
Agriculture and Rural Development, you requested access to ‘[a]ll individual payment
records in Euros paid out to recipients under the Common Agricultural Policy and
recorded in The Clearance of Accounts Audit Trail System pursuant to Commission
Regulation (EC) No 2390/1999 (as amended) between January 1, 2010 and the present
day. Format: Data in an electronic format such as delimited data sets, database file,
spreadsheet or other non-proprietary electronic format.’
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
The European Commission did not identify any documents as falling under the scope of
your request.
In its initial reply of 13 June 2019, Directorate-General for Agriculture and Rural
Development refused your request by stating that ‘the Commission does not hold any
documents that would correspond to the description given in your application.’
In your confirmatory application, you request a review of this declaration. You support
your request with detailed arguments, which I will address in the corresponding sections
below to the extent necessary.
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, I regret to inform you that I have to confirm the initial decision of
Directorate-General for Agriculture and Rural Development that the document you
request cannot be considered as existing document under Regulation (EC) No 1049/2001,
for the reasons set out below.
Pursuant to point (a) of Article 3 of Regulation (EC) No 1049/2001, the term ‘document’
is defined as ‘any content whatever its medium (written on paper or stored in electronic
form or as a sound, visual or audio-visual recording) concerning a matter relating to the
policies, activities and decisions falling within the institution's sphere of responsibility’.
In accordance with Article 2(3) of Regulation (EC) No 1049/2001, ‘[t]his Regulation
shall apply to all documents held by an institution, that is to say, documents drawn up or
received by it and in its possession, in all areas of activity of the European Union.’
Both in your initial and confirmatory application, you requested access to a document
that is to be generated from a database maintained by the European Commission.
As the Court of Justice confirmed, not all extractions from a database can be subject to an
access to document request: ‘[a]dmittedly, an electronic database may enable the
extraction of any information contained therein. However, the possibility that a document
may be created from such a database does not lead to the conclusion that the document
concerned must be regarded as an existing document for the purposes of Regulation
No 1049/2001.’3
When generating a document from a database, the Commission must decide, essentially,
whether the requested extraction of data is to be considered a creation of a new document
or not. As the Court of Justice established, ‘… the right of access to documents of the
institutions applies only to existing documents in the possession of the institution
concerned and that Regulation No 1049/2001 may not be relied upon to oblige an
3 Judgment of the Court of Justice of 11 January 2017,
Typke v Commission, C-491/15 P, EU:C:2017:5,
paragraph 30.
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institution to create a document which does not exist. … It follows that … an application
for access that would require the Commission to create a new document, even if that
document were based on information already appearing in existing documents held by it,
falls outside the framework of Regulation No 1049/2001.’4 In other words, the European
Commission should decide whether the requested extraction from its database is
considered as a creation of a new document.
The case law of the Court of Justice established a benchmark to this end. According to
the Court of Justice, ‘… as far as electronic databases [such as the Clearance of Accounts
Audit Trail System, hereafter ‘CATS’] are concerned, the distinction between an existing
document and a new document must be made on the basis of a criterion adapted to the
technical specificities of those databases and in line with the objective of Regulation
No 1049/2001, whose purpose, as is apparent from recital 4 and Article 1(a) thereof, is
‘to ensure the widest possible access to documents’.5 And while ‘[i]t is not disputed that
the information contained in databases, depending on the structure and the restrictions
imposed by the programming of such databases, may be regrouped, linked and presented
in different ways using programming languages, ... the programming and IT management
of such databases are not included among the operations carried out in the context of
general use by final users. Those users access information contained in a database by
using pre-programmed search tools. Those tools enable them to perform standardised
operations easily in order to display the information which they usually need. A
substantial investment on their part is, in general, not required in that context.’6
Consequently, ‘all information which can be extracted from an electronic database by
general use through pre-programmed search tools, even if that information has not
previously been displayed in that form or ever been the subject matter of a search by the
staff of the institutions, must be regarded as an existing document.’7
This means that, ‘[o]n the other hand, … any information whose extraction from a
database calls for a substantial investment must be regarded as a new document and not
as an existing document.’8
In the present case, in order to obtain the requested extraction, the European Commission
should develop a new ORACLE SQL script with the appropriate search parameters and
test for each request, following the analysis of the requirements. The outcome should
then be stored in a text file and has to be analysed with the software tool ACL (Audit
Command Language). This analysis and any related cross-checks have to be done
manually. Thus, the requested extraction from the CATS database would require
considerable new programming.
Such a substantial investment in order to extract the requested data would amount to the
creation of a new document. As the Court of Justice confirmed, ‘… the operations which
4 Idem, paragraph 31.
5 Idem, paragraph 35.
6 Idem, paragraph 36.
7 Idem, paragraph 37.
8 Idem, paragraph 39.
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