Interactions with Microsoft
Laura Kayali made this Accès à l'information request to Direction générale de l’agriculture et du développement rural
Dear Agriculture and Rural Development,
Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents, note meetings which contain the following information:
For the period between November 2014 and March 2019:
- List of lobby meetings held with your DG, with Microsoft or its intermediaries. The list should include: date, individuals attending + organisational affiliation, the issues discussed,
- Minutes and other reports of these meetings
- All correspondence including attachments (i.e. any emails, correspondence or telephone call notes) between your DG (including the Commissioner and the Cabinet) and Amazon or any intermediaries representing its interests.
- All documents prepared for the meetings and exchanged in the course of the meetings between both parties.
Rue de la Loi 62, 1040 Bruxelles, Belgium
Dear Agriculture and Rural Development,
I obviously meant:
- All correspondence including attachments (i.e. any emails, correspondence or telephone call notes) between your DG (including the Commissioner and the Cabinet) and *Microsoft* or any intermediaries representing its interests.
Rue de la Loi 62, 1040 Bruxelles
Thank you for your e-mail dated 8 March 2019. We hereby acknowledge
receipt of your application for access to documents, which was registered
on 11 March 2019 under reference number GestDem 2019/1413.
In accordance with Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, your application
will be handled within 15 working days. The time limit will expire on 01
April 2019. In case this time limit needs to be extended, you will be
informed in due course.
You have lodged your application via the AsktheEU.org website. Please note
that this is a private third-party website which has no link with any
institution of the European Union. Therefore, the European Commission
cannot be held accountable for any technical issues or problems linked to
the use of this system.
Please note that the private third party running the AsktheEU.org website
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Similarly, the third party publishes on that website any reply that the
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Access to documents team
DG Agriculture and Rural Development
We refer to your e-mail dated 8/03/2019 in which you make a request for
access to documents, registered on 11/03/2019 under the above mentioned
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 01/04/2019.
Therefore, we have to extend the time limit with 15 working days in
accordance with Article 7(3) of Regulation (EC) No 1049/2001 regarding
public access to documents. The new time limit expires on 25/04/2019.
We apologise for this delay and for any inconvenience this may cause.
Access to documents team
DG Agriculture and Rural Development
*** Advanced copy by e-mail and registered mail with acknowledgement of receipt ***
Dear Ms Kayali,
Please find attached document Ares(2019)3109073 regarding "GestDem 2019/1355" sent by Mr Roberto Viola, General Director of DG CONNECT on 10/05/2019.
DG CONNECT — ACCESS TO DOCUMENTS
Avenue de Beaulieu, 25
Dear DG Connect
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 'Interactions with Microsoft'.
Thank you for getting back to me and for the documents your DG has provided on my request of access to documents on interactions with Microsoft (GestDem 2019/1355 ). Unfortunately, I am making a confirmatory application requesting the Commission to review its positions.
I would first like to point out that DG Connect's reply was made under my request with DG Agri. A full history of my request and all correspondence are available here (request to DG Agri with answer from Connect) https://www.asktheeu.org/en/request/inte... and here (request to DG Connect) https://www.asktheeu.org/en/request/inte....
By the means of this confirmatory application I would like to contest DG Connect’s unilateral decision, and the subsequent refusal of a series of documents that were placed outside of the scope of my initial request. I would also like to contest DG Connect’s application of the exception in Article 4 (3) of Regulation 1049/2001, protection of the decision-making process.
1 - On the unilateral decision and the SG fair solution: In my April 2 email to the Secretariat General (hereinafter, ‘the SG’), I explained why I did not think the “fair solution” suggested by the Commission was indeed fair. That I have made several simultaneous requests and/the objective of my requests (which I am under no
obligation to disclose) are not relevant to assess the relevance of the aforesaid requests, unless what the SG and your reply imply.
Article 6 (1) of Regulation 1049/2001 clearly states: “The applicant is not obliged to state reasons for the application”. Therefore, DG Connect’s unilateral decision to restrict the scope of my request based on the (in addition, false) allegation that I did not provide reasons for my application, is in breach of Regulation 1049/2001.
Furthermore, I would like to state that even if I am not obliged by the Regulation to state “the objective” of my requests, I did – contrary to DG Connect’s assertion – provide a justification in saying that my request was self-explanatory: I am interested in knowing about the interactions that have taken place between EU institutions and bodies and Microsoft, as I believe this is in the public interest.
DG Connect’s insistence that I provide reasons for my request is in violation of Regulation 1049/2001.
It is also not true that I did not propose an alternative fair solution. In my response to the SG, I did reduce the scope of my initial requests: as expressed to the SG, I already agreed to “limit the intermediaries I am interested in to law firms and/or consultants directly representing Microsoft in meetings.”
The following agreement was reached with the SG: That my requests would be handled separately and independently by each DG and that, in their individual handling of my request, DGs would contact me with the view of finding a fair solution (in line with Article 6 (3) of Regulation 1049/2001).
To this extent I would like to note that after having reached this agreement with the SG, DG Connect did not contact me at any point with the view of finding a fair solution. Instead, it has unilaterally
decided to reduce the scope of my request both in terms of chronology (from 2017 on) and of volume (only the meetings published in the transparency register).
On the one hand, this constitutes a violation of Article 6 (3) of Regulation 1049/2001. On the other hand, as I already explained to the SG, limiting the scope of my request to meetings already listed in the Transparency Register seriously hampers the purpose of my requests (to know about the interactions that have taken place between EU institutions and bodies and Microsoft) given that – as it is public knowledge – many stakeholder interactions take place with middle and low-level Commission officials who are not
covered by the Transparency Register.
I am therefore hereby calling on DG Connect to:
--> Rectify its unilateral solution by widening the scope of my request both chronologically - from 2014 to 2019 - and in terms of scope, in order to include meetings held with Microsoft and intermediaries (per the restricted definition of “intermediaries” I have already provided) with middle and lower-level officials.
--> As an alternative fair solution in the context of the appeal, I would suggest to extend limit to avoid administrative burden in a short period of time. I would not mind waiting until September 2019 for my access to documents request to be completed.
2- On DG Connect’s application of Article 4 (3) of Regulation 1049/2001 - protection of the decision-making process:
In its response of 10 May, DG Connect refuses partial or total access to a series of documents stating that disclosure would undermine the decision-making process. To this extent I would like to argue:
First, that the refusal of documents on the basis of the “Chatham House” rule is unlawful. The right of access to EU documents is a fundamental right enshrined in the Treaty on the Functioning of the European Union and the EU Charter of Fundamental Rights. Regulation 1049/2001 sets out the legal framework which regulates the exercise of such fundamental right, including a series of legitimate exceptions under which access to documents may be refused. Nowhere in the Regulation the “Chatham House rule” may be found as a legitimate exception for refusing access to documents containing sensitive information.
Furthermore, protection of interests of stakeholders on the basis of the Chatham House rule creates, de facto, parallel transparency obligations and confidentiality rights, granted in an ad-hoc manner at these stakeholders’ request. This is contrary to the spirit of EU law.
EU legal framework, which is common to all individuals and corporations, already very clearly sets the conditions under which EU interests may be protected. Agreeing to hold meetings with public officials (in which public decision-making is discussed) under the Chatham House rule, and also using this highly irregular practice to refuse access to documents, allowing certain stakeholders to circumvent our common legal framework, which does not seem acceptable.
EU institutions are obliged to consider disclosure of documents under the exceptions set in Article 4 of Regulation 1049/2001, and not under ad-hoc, informal rules that lack any kind of legal basis under EU law.
Second, in regards to DG Connect’s argument that disclosure would “deter the services of the European Commission from putting forward their views without being unduly influenced by the prospect of the public exposure of such views”, it is worth noting that the Court of Justice has established that, for external pressure - or, in the present case, external influence - to constitute legitimate ground for refusing access to requested documents, the reality of such external influences must be established with certainty, and
evidence must be provided to show that there is a foreseeable risk that the decision to be taken would be substantially affected due to this external influence.
To this extent, the arguments put forward by DG Connect lack of the certainty and evidence required by the cited case law; its response doesn’t even mention the decision-making process supposedly endangered by disclosure, or even if it’s legislative or not.
Third, I would like to state that there is indeed an overriding public interest in the disclosure of these documents, as mentioned above. Transparency in this case acts as a tool for public participation (i.e.: to be able to exercise one’s rights in a participatory democracy) and for public accountability (i.e.: to be able to exercise one’s rights in a representative democracy), two of the founding pillars of the European Union, as recognized in the EU treaties and by EU case law.
I would please like DG Connect to:
- rectify its assessment that a large number of documents under the scope of my application falls under Article (3) of Regulation 1049/2001;
- rectify any assertion that the “Chatham House” rule can constitute legitimate ground for the refusal of access to EU documents; and
- disclose the requested documents.
3 - On the protection of privacy and integrity of the individual and the protection of commercial interests:
I fully agree with your assessment that names and people need to be protected. I am not interested in the names of the Microsoft employees or representatives who have made arguments on EU policy, I am interested in the company and the arguments themselves.
Please note that by appealing and developing points 1- and 2-, I do not ask for names of people to be disclosed.
4- On the Facebook precedent: Last year, your services granted access
to dozens of documents on Facebook (GestDem 2018/2284, https://www.asktheeu.org/en/request/meet...).
My request is very similar to that one, so I am a bit surprised about the arguments you bring forward.
I am surprised that you unilaterally reduced the scope of my Microsoft request when you didn’t do so for last year Facebook’s request (which was similar in terms of scope). I am also surprised the Commission brings up the need to protect the decision making process, when you did not do so in the 2018 Facebook request. It did not put forward such arguments when documents about Facebook were requested (see here https://www.asktheeu.org/en/request/5470...).
I do not understand why there is a double standard.
Please don’t hesitate to contact me if you have any doubts or question in regards to this confirmatory application.
Thank you in advance.