Ref. Ares(2020)7713635 - 17/12/2020
EUROPEAN COMMISSION
Brussels, 7.10.2019
C(2019) 7348 final
ASB Security bvba
Vliegveld 744,
1820 Steenokkerzeel
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 2019/5032
Dear
,
I refer to your email of 9 September 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 29 August 2019, addressed to the Directorate-General for
Mobility and Transport, you requested access to a document referenced under number
‘C(2015)8005/F1’.
The European Commission has identified the following document as falling under the
scope of your request:
Commission Implementing Decision C(2015)8005 of 28 October 2015
laying down detailed measures for the implementation of common rules in
the field of aviation security containing information referred to in Article
18 (a) of Regulation (EC) No 300/2008, (hereafter ‘the requested
document’).
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
In its initial reply of 6 September 2019, the Directorate-General for Mobility and
Transport refused access to this document based on the exception of Article 4(1)(a) first
indent (protection of the public interest as regards public security) of Regulation (EC) No
1049/2001.
In your confirmatory application, you request a review of this position. Your arguments
have been taken into account in our assessment, the results of which are explained 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 I regret to inform you that I have to confirm the initial decision of
Directorate-General for Mobility and Transport to refuse access to the requested
document, based on the exception of Article 4(1)(a) first and third indents (protection of
the public interest as regards public security and international relations) of Regulation
(EC) No 1049/2001, for the reasons set out below.
2.1. Protection of the public interest as regards public security
Article 4(1)(a) first ident of Regulation (EC) No 1049/2001 provides that ‘[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of: […] the public interest as regards […] public security […]’.
As a preliminary remark, please note that if access is granted to a document under
Regulation (EC) No 1049/2001, this document becomes accessible to the public at large.
The General Court has acknowledged that ‘the institutions enjoy a wide discretion when
considering whether access to a document may undermine the public interest and,
consequently, […] the Court’s review of the legality of the institutions’ decisions
refusing access to documents on the basis of the mandatory exceptions relating to the
public interest must be limited to verifying whether the procedural rules and the duty to
state reasons have been complied with, the facts have been accurately stated, and whether
there has been a manifest error of assessment of the facts or a misuse of powers’.3
Moreover, the General Court recently ruled that, as regards the interests protected by
Article 4(1)(a) of Regulation (EC) No 1049/2001, ‘it must be accepted that the
particularly sensitive and fundamental nature of those interests, combined with the fact
that access must, under that provision, be refused by the institution if disclosure of a
document to the public would undermine those interests, confers on the decision which
must thus be adopted by the institution a complexity and delicacy that call for the
3 Judgment of the General Court of 25 April 2007,
WWF European Policy Programme v Council of the
EU, T-264/04, EU:T:2007:114, paragraph 40.
2
exercise of particular care. Such a decision requires, therefore, a margin of
appreciation’.4
The Commission Implementing Decision C(2015)8005 and its amendments, to which
you request access, lay down detailed measures in the field of aviation security, to be
implemented by Member States of the EU. It contains security-sensitive information,
such as the protection of passengers and baggages, the description of passengers’ and
baggages’ screening methods and risk assessments. Furthermore, the requested document
sets performance requirements for a number of detection systems and equipment capable
of detecting threat materials, such as liquid explosive detection systems. The document
also lays down specific security measures for security-restricted areas at airports,
requirements and procedures to follow in order to perform aircraft security searches, as
well as information about methods of examinations and security controls taking place at
airports.
Please note that it is not possible to give more details justifying the need for
confidentiality in respect of the requested document without disclosing its content and,
thereby, depriving the exception of its very purpose.5
This information, if disclosed, would undermine the protection of public security, as it
would put in the public domain detailed knowledge about airport security procedures,
methods and equipment, thereby promoting and facilitating malicious attempts of
circumventing aviation security rules and procedures. This would, in turn, thwart the
effectiveness of the fight against terrorism and would compromise the position of the
European Union in international cooperation concerning the fight against terrorism. In
this context, the Court of Justice specifically recognised that disclosure of information
related to the fight against terrorism undermines the public security.6
Furthermore, the requested document is not published and is addressed only to the
Member States of the EU. Indeed, point (a) of Article 18 of Regulation (EC) No
300/20087 on common rules in the field of civil aviation security provides for the non-
publication of the requested document precisely for the reason of protecting sensitive
security information. Granting public access to the information contained in the decision
would call into question and change the nature of the procedure foreseen for sharing
sensitive information relating to aviation security with third parties, laid down in Article
18 point (a) of Regulation (EC) No 300/2008 and in the Commission Implementing
Decision C(2015)8005. Moreover, I note that Regulation (EC) No 1049/2001 and
Regulation (EC) No 300/2008 are of the same hierarchical order and therefore none of
them takes precedence over the other.
4 Judgment of the General Court of 11 July 2018,
Client Earth v European Commission, T-644/16,
EU:T:2018:429, paragraph 23.
5
Judgment of the General Court of 8 February 2018,
Pagpyprios organismos ageladotrofon v
Commission, T-74/16, EU:T:2018:75, paragraph 71.
6
Judgment of the Court of Justice of 1 February 2007,
Sison v Council, (hereafter
Sison v Council), C-
266/05, EU:C:2007:75, paragraph 66.
7
Regulation (EC) No 300/2008 of the European Parliament and of the Council, on common rules in the
field of civil aviation security and repealing Regulation (EC) No 2320/2002, Official Journal L 97 of
11 March 2008, p.72.
3
2.2. Protection of the public interest as regards international relations
Article 4(1)(a), third indent of Regulation (EC) No 1049/2001 provides that ‘the
institutions shall refuse access to a document where disclosure would undermine the
protection of: […] the public interest as regards […] international relations […]’.
It has been recognised that Article 4(1)(a) third indent can be invoked if it is clear that
disclosure would harm the EU's international relations with third countries.8
As provided for in the Commission Implementing Regulation (EU) 2015/1998 of 5
November 2015 laying down detailed measures for the implementation of the common
basic standards on aviation security9, the European Union has recognised several third
countries as applying security standards equivalent to the European common basic
standards in the field of aviation security. This implies a number of obligations and rules
to respect, such as the obligation of notification of the authorities of the Member States in
case security standards applied by third countries are no longer equivalent to the common
basic standards of the European Union and vice versa. Hence, any substantial changes as
regards the applicable rules in the field of aviation security in the European Union,
including the number of people having access to security-sensitive information, would
necessarily have an impact on the third countries which apply equivalent standards. This
would in turn undermine the European Union’s relations to those countries, as it would
reveal security standards also applicable in those third countries, without their prior
knowledge and agreement.
Therefore, I conclude that there is a real and non-hypothetical risk that disclosure of the
requested document can undermine Article 4(1)(a) first and third indents (protection of
the public interest as regards public security and international relations), of Regulation
(EC) No 1049/2001.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
Please note that Article 4(1)(a) 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.
In your confirmatory application, you argue that you act as a representative of your
client. You argue the following, I quote, ‘[o]ur company, ASB Security, is a private
security company that works with Explosive Detection Dogs to secure air freight in
Belgium. We are also looking to start screening cargo with x-ray scanners. Therefore, I
would like to access the documents as requested above to make sure our activities are
done in accordance to European Law’.
8
Judgment of the Court of First Instance of 7 February 2002,
Kuijer v Council, T-211/00,
EU:T:2002:30 paragraphs 62-65.
9
Commission Implementing Regulation (EU) 2015/1998 laying down detailed measures for the
implementation of the common basic standards on aviation security, Official Journal L 299 of 5
November 2015, p.1.
4
As confirmed by the General Court in the
Franchet and Byk judgment, ‘[…] the purpose
of the regulation is to guarantee access for everyone to public documents and not only
access for the requesting party to documents concerning him.
Consequently, the particular interest which may be asserted by a requesting party in
obtaining access to a document concerning him personally cannot be taken into
account’ 10
.
This was further confirmed by the Court of Justice in Case C-266/05 (
Sison v Council) where it held that ‘the particular interest of an applicant in obtaining access to documents
cannot be taken into account by the institution called upon to rule on the question
whether the disclosure to the public of those documents would undermine the interests
protected by Article 4(1)(a) of Regulation No 1049/2001 and to refuse, if that is the case,
the access requested’.11 Furthermore, I note that the information you request access to, is
precisely the type of information that the Commission Implementing Decision
C(2015)8005 is intending to protect.
Please note that this confirmatory decision for access to documents is without prejudice
to any reply by the appropriate national authority of the Member State concerned
regarding access to parts of the requested document on the ‘need to know’ basis, as
stipulated in the Commission Implementing Decision C(2015)8001 itself.
I note that the appropriate national authority for your specific case is the Federal Public
Service Mobility and Transport, Belgian Civil Aviation Authority - Aviation
Inspectorate. You may find more information at the following website:
https://mobilit.belgium.be/fr/transport_aerien/surete
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting (further) partial access to the documents requested.
I understand from your application that you request access to the Commission
Implementing Decision C(2015)8001/F1, ‘to secure air freight in Belgium. [You] are also
looking to start screening cargo with x-ray scanners’.
As explained in details above, this is precisely the type of information contained in this
decision, the public disclosure of which would undermine the protection of the public
interest as regards public security and international relations under Article 4 (1)(a) first
and third indents of Regulation (EC) No 1049/2001.
Consequently, I note that no meaningful partial access is possible without undermining
the above-mentioned protected interests and that the document must be protected in its
entirety.
10 Judgement of the General Court of 6 July 2006,
Franchet and Byk v Commission, Joined Cases T-
391/03 and T-70/04, EU:T:2006:190, paragraphs 136 and 137.
11
Judgement in
Sison v Council, cited above, paragraph 47.
5