Dear Structural Reform Support,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:

- specific contracts and grants awarded for the implementation of Finnish RRP that were selected by the commission for funding under the TSI Regulation (both through direct and indirect management) that involved third parties such as experts from EU Member States' national administrations, international organizations, private firms and consultancies, individual experts from the private sector;

- The documents of the contracts and grants awarded by the European Commission after Finland’s requests within the budget of the Technical Support Instrument (TSI), including the technical and administrative specifications.

- The documents should include the name of the beneficiary (experts from EU Member States' national administrations, international organizations, private firms and consultancies, individual experts from the private sector), the subject (project summary), VAT number (if available), the contracted amount, and the date of allocation and start.

Should you encounter any difficulties in interpreting or processing my request, I am ready to discuss ways to clarify or amend it to keep the effort required on your part to the necessary minimum.

Please send me an acknowledgement of receipt for this request, as foreseen by Article 7 (1) of Regulation 1049/2001. Many thanks for your help.

Yours faithfully,

Vivi Säiläkivi

[email address]

Address:

Päijänteentie 4-6A3
00550 Helsinki
Finland

DG Reform has replied me via email. These are the messages they have sent me.

4.1.2024

"Case 2024/0039 - Acknowledgement of receipt
[email address] <[email address]>

Säiläkivi, Vivi S S​

Dear Sir or Madam,

We hereby acknowledge the receipt of your request for access to documents sent on 19/12/2023 and registered on 04/01/2024 under the case number 2024/0039.

We will handle your request within 15 working days as of the date of registration. The time-limit expires on 25/01/2024. We will let you know if we need to extend this time limit for additional 15 working days.

To find more information on how we process your personal data, please see the privacy statement.

Yours faithfully,

Directorate-General for Structural Reform Support - Access to Documents
European Commission"

24.1.2024

"Your application for access to documents - 2024/0039
[email address] <[email address]>

Säiläkivi, Vivi S S​

Dear Mrs. Viivi Sailakivi,

We refer to your e-mail of 19 December 2023 in which you make a request for access to documents, registered on 4 January 2024 under case number 2024/0039.

Your application is currently being handled. However, we will not be in a position to complete the handling of your application within the time limit of 15 working days, which expires on 25 January 2024.

An extended time limit is needed as your request concerns a very large number of documents.Therefore, in line with Article 7(3) of Regulation (EC) No 1049/2001, we need to extend this time limit by 15 additional working days.

The new time limit expires on 15 February 2024.

We apologise for this delay and for any inconvenience this may cause.

Kind regards,

DG REFORM - Access to Documents Team"

REFORM-ACCESS-DOCUMENTS@ec.europa.eu, Structural Reform Support

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Dear Ms Säiläkivi,

 

Please find attached a message concerning your request for access to
Commission documents registered under the above case number 2024/0039.

 

Please acknowledge the receipt of this message by return email.

 

Kind regards,

REFORM ACCES TO DOCUMENTS

 

Dear Structural Reform Support,

Please pass this on to the person who reviews confirmatory applications.

I am filing the following confirmatory application with regards to my access to documents request 'Information request - Technical Support Instrument (TSI)', as stipulated in the Regulation (EC) 1049/2001 Article 7(2), since you have partially and totally refused access to the documents I requested.

You have erred in four ways.

First, you stated that you cannot disclose the specific contracts (contractor’s specific tender), because that information "falls under the exception of the first indent of Article 4(2) of Regulation (EC) 1049/2001, and more specifically refers to ‘the protection of commercial interests of a natural or legal person, including intellectual property’. The tenders (for specific contracts) contain information relating to methodologies, know-how, specific pricing and business strategies as to how the services will be provided. Disclosure to the public of such information relating to the execution of the service would undermine the protection of the expertise, know-how, strategy and creativity and thus the contractor’s commercial strength, as it could be used by competitors in future similar procedures, to the detriment of the legal persons concerned. Such disclosure could result in distortion of fair competition in any future procedures."

In the case Terezakis, also dealing with the exception of the first indent of Article 4(2) of Regulation (EC) 1049/2001, the General Court has stated that "the fact that the main contract contains detailed information about the contracting parties and their business relations – are general and abstract in nature and applicable per se to any commercial contract and do not show that the Commission undertook a specific, individual examination of the content of the main contract. Furthermore, if all information relating to a company and its business relations were regarded as being covered by the protection which must be given to commercial interests in accordance with Article 4(2), first indent, of Regulation No 1049/2001, effect would not be given to the general principle of giving the public the widest possible access to documents held by the institutions." (Case T‑380/04, Ioannis Terezakis v Commission of the European Communities, 93)

Further, as laid down in the case Turco, the Institution must assess whether the disclosure of a document or parts of a document covered by an exception to the Regulation (EC) 1049/2001 would undermine, in a “reasonably foreseeable and not purely hypothetical” manner the protection of the exception (Kingdom of Sweden and Maurizio Turco v Council of the European Union [2008] ECJ Joined cases C-39/05 P and C-52/05 P, 43).

You have stated in your response that "[t]he tenders (for specific contracts) contain information relating to methodologies, know-how, specific pricing and business strategies as to how the services will be provided. Disclosure to the public of such information relating to the execution of the service would undermine the protection of the expertise, know-how, strategy and creativity and thus the contractor’s commercial strength, as it could be used by competitors in future similar procedures, to the detriment of the legal persons concerned." In the light of the cases Turco and Terezakis, your argument for not disclosing the tenders seems too general. Information on methodologies, know-how, specific pricing and business strategies, execution of the service, strategy and creativity can be found in any commercial contract. Hence, your argument that disclosing the tenders would undermine the protection of commercial interest seems purely hypothetical and not reasonably foreseeable. It seems that you did not undertake "a specific, individual examination of the content" of the tender (Terezakis, 93).

To give an effect to the general principle of giving the public the widest possible access to documents held by the Institutions, as laid down in the TFEU Article 15(1) and Regulation (EC) 1049/2001 Article 1, you should undertake a specific, individual examination of the content of the tender. That is to consider again if the tenders really contain detailed individuating information that would compromise the interests of the contracting parties as for their commercial strength and fair competition in any future procedures. If you cannot find any such content in the tenders, you should grant an access to the tender documents.

The second way you err is that it seems you have not consulted the Member State on if it even has an interest to protect the documents you chose not to disclose (Annex I – Request for Services) under the exceptions laid down in Article 4(1)(a) of Regulation (EC) 1049/2001. Since it seems that the contents of these Request for Services documents you chose not to disclose by claiming exceptions through the Article 4(1)(a) originates from the Member State, you (the Commission) should carry out the consultation of the Member State in accordance with the Transparency Regulation (see here, for example, the IFAW judgment).
The Request for Services template is readily available online on the Commission's own webpages for the Member State civil servants to download and fill in. See: https://commission.europa.eu/funding-ten... Further, you state that "each Request for Services is based on sensitive information related to internal procedures in the relevant Finnish authorities and to the relevant current or future possible policies in Finland." The contents of the Request for Services documents originate from the Member State and the Request for Services documents that have been filled in originate from the Member State even if the Commission provides the template.

You now appeal to the Member State's desire to protect these documents, but you do this without finding out whether the Member State is even interested in protecting the documents. And even if Finland considers them protected, the Commission should still independently assess whether there is a need for protection. ("It follows that, before refusing access to a document originating from a Member State, the institution concerned must examine whether that State has based its objection on the substantive exceptions in Article 4(1) to (3) of Regulation No 1049/2001 and has given proper reasons for its position. Consequently, in the procedure for the adoption of a decision to refuse access, the Commission must make sure that those reasons exist and refer to them in the decision it makes following that procedure.")(Case C‑135/11 P IFAW Internationaler Tierschutz-Fonds gGmbH v European Commission, 62)

Further related to the exceptions you claim under the Article 4(1)(a), building on the Turco test mentioned above: you have argued that disclosing the Request for Services documents would harm the economic policy of the Member State without giving any specifications on why this is the case. How can such a decision be made by the Commission, taking into account that the risk should be concrete and not completely hypothetical according to the Turco test? You cannot start from the assumption that the documents are, in principle, confidential, unless you can give specific enough reasons to claim so AFTER having consulted the Member State if the harm caused to the economic policy really is the case.

It follows that you should consult the Member State if it objects disclosing the documents you have now refused an access based on the Article 4(1)(a). If the Member State does not object disclosing the documents based on the Article 4(1)(a) exceptions, you should release them. Even if the Member State objects disclosing the documents on the basis of the Article 4(1)(a), you should still independently evaluate and verify that the reasons claimed under the Article 4(1)(a) really exist. Further, those reasons should be specific enough, not just about categorical financial, monetary or economic interest.

The third way you err is that you consider the political process refer to in relation the claiming exception in relation to the Article 4(1)(a) belonging "solely to the Finnish institutions." You are wrong. It belongs also to the Finnish citizens also due to the nature of the TSI support in the context of the Recovery Plan for Europe.

TSI is part of the Multiannual Financial Framework (MFF) 2021-2027 and of the Recovery Plan for Europe. They comprise "the largest stimulus package ever financed in Europe." (https://commission.europa.eu/strategy-an...) The European Ombudsman has stated that against the background that these funds constitute unprecedented EU-funded stimulus package for Member State, initiatives taken with the help of the funds must be matched with high transparency standards to ensure meaningful accountability, since there is considerable public interest in knowing how this money is being used. (See https://www.ombudsman.europa.eu/en/decis...) Further, as laid down in the Article 9 in the Regulation (EU) 2021/240 establishing the TSI, it is mentioned that "the reforms pursued by Member States [..] gather wide support and ownership." This suggests that the Member States consult, where appropriate, relevant stakeholders (including the citizens) before requesting technical support.

Accordingly, the technical support provided by the Commission in accordance with the TSI Regulation does not feeds into any political processes that belong solely to the Finnish institutions but instead, feed into processes where the civil society also has and should have ownership. Therefore, you err in that you cannot release documents covered by the Regulation 1049/2001 (EC) Article 4(1)(a) fourth indent exceptions. Any documents originating from the Member State, such as the Annex I – Request for Services, belongs to the citizens of the Member State also and hence, you should disclose it.

The fourth way you err is that you claim exceptions under the third indent of Article 4(1)(a) of Regulation (EC) No 1049/2001, harm caused to international relations in terms of the ability of the organisations to negotiate and conclude future agreements similar to the one concluded with the OECD in this case. It is rather likely that the TSI project concluded with the OECD is this one "OECD-DG Reform Project: Enhancing EU Mining Regions to Support the Green Transition and Secure EU Mineral Supplies": https://reform-support.ec.europa.eu/what... also mentioned by the OECD on its own webpages: https://www.oecd.org/regional/rural-deve... or this one "Development of internal control and risk management" https://vm.fi/en/development-of-internal... https://valtioneuvosto.fi/en/-/10623/min...
How can harm to international relations be caused if the actors tell about this project on their own webpages? Why would the "disclosure of the contribution agreement No. REFORM/IM2023/005 with the OECD" harm international relations if the contribution is publicly available online to begin with?

Further, in legal sense, when referring to the protection of international relations, non disclosure of documents has to be justified by an analysis of the relevant content and context and the specific circumstances, not just by any abstract or distant connection with international relations. See Case T-211/00 Kuijer v Council ECLI:EU:T:2002:30, [2002] ECR II-485, paras 60-61; Case C-350/12 P Council v in ’t Veld ECLI:EU:C:2014:2039, para 51, 52 and 63‒64. You have now provided no specific analysis of the disclosing the information would be a risk to international relations in a reasonably foreseeable and not purely hypothetical manner.

Considering all four points above, you should review my access to documents request and provide me with the documents you identified relevant in their entirety if you cannot find legal reasons to partially or totally refuse access.

A full history of my request and all correspondence is available on the Internet at this address: https://www.asktheeu.org/en/request/info...

Yours faithfully,

Vivi Säiläkivi

Vivi Säiläkivi

Dear [email address],

May I remind you that by now, you should have already replied my confirmatory application.

In exceptional circumstances, for example when an application relates to a very long
document or a very large number of documents, the prescribed time limit may be extended
by another 15 working days. You have already done this and those 15 working days have passed.

Failure by the Commission to reply within the prescribed time limit is equivalent to a
negative reply. If access is refused following a confirmatory application, the Commission must inform the
applicant in writing of his or her right to bring an action in the General Court (GC) or to
complain to the European Ombudsman (according to the conditions laid down in Articles
263 and 228 TFEU respectively).

Yours sincerely,

Vivi Säiläkivi