Meetings or correspondence between between DG SANTE and the EU Ombudsman relating to tobacco policy
Dear Health and Food Safety,
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:
Information on any meetings held or correspondence between between DG SANTE and the EU Ombudsman relating to tobacco policy, in the 30 days leading up to and including the 28th June 2024. This includes:
• Any internal emails on the organisation or substance of the meeting.
• The agenda of the meeting.
• Minutes of the meeting.
• Any documents that were inspected by the Ombudsman prior to or during the meeting.
• Any documents requested by the Ombudsman following the meeting.
Yours faithfully,
Neil McLaren
Dear Sir or Madam,
We are writing to you concerning your request for access to documents sent
on 28/06/2024 and registered on 28/06/2024 under case number 2024/3426.
Since you have not indicated your postal address, we are not able to start
handling your request. The 15 working days to reply to your request will
start running only when you send us your postal address.
You can send your postal address by replying to this e-mail. If we do not
receive your reply we may close this case.
Please note that you can submit a request for access to Commission
documents via the portal [1]'Request a Commission document', which does
not require you to indicate your postal address.
Why do we need your personal postal address?
Since 1 April 2014, the submission of a postal address became a mandatory
feature when submitting an application for access to Commission documents
via an e-mail. We would like to explain why we need your postal address in
order to register and handle your application for access to documents when
submitted via e-mail:
• Firstly, to obtain legal certainty as regards the date you received
the European Commission reply to your application for public access to
documents. Article 297 of the Treaty on the Functioning of the
European Union (TFEU) states that 'decisions which specify to whom
they are addressed, shall be notified to those to whom they are
addressed and shall take effect upon such notification.' In line with
this provision, if the Commission does not grant full access to the
requested documents, it notifies the reply to the applicant via
registered mail with acknowledgement of receipt or via delivery
service. This requires an indication of a valid postal address by the
applicant;
• Secondly, to apply correctly the [2]Data Protection Regulation (EU)
2018/1725. Knowing whether the applicant is an EU resident (or not) is
necessary for deciding which conditions shall apply for the
transmissions of personal data to applicants for access to documents.
These conditions are not the same for recipients established in the
Union and for recipients in third countries. As the vast majority of
the documents requested contain personal data, the Commission cannot
ensure the correct application of the data protection rules in the
absence of a postal address;
• Thirdly, to apply correctly [3]Regulation (EC) No 1049/2001. Article
4(1)(b) of that Regulation refers to the protection of the privacy and
integrity of the individual and has to be applied in line with the
Data Protection Regulation;
• Fourthly, to protect the interest of other citizens and safeguard the
principle of good administration. The Commission has to treat all
citizens equally by ensuring that the legal framework for public
access to documents is respected. For example, it has to verify
whether Article 6(3) of Regulation (EC) No 1049/2001 is being evaded
by introducing several requests under different identities. Indeed, in
its Ryanair judgment ([4]EU:T:2010:511), the General Court confirmed
that Article 6(3) of Regulation (EC) No 1049/2001 cannot be evaded by
splitting an application into several, seemingly separate, parts. In
addition, the Commission has to make sure that the legal framework is
respected and the right of access to documents is not abused by making
requests under an invented identity.
The considerations above show that the request for and the consequent
processing of the applicant's postal address is not only appropriate, but
also strictly necessary for the performance of a task carried out in the
public interest within the meaning of Article 5(1)(a) of Data Protection
Regulation, namely providing a smooth and effective access to documents.
Yours faithfully,
Directorate-General for Health and Food Safety - Access to Documents
European Commission
References
Visible links
1. https://www.ec.europa.eu/transparency/do...
2. https://eur-lex.europa.eu/legal-content/...
3. https://eur-lex.europa.eu/legal-content/...
4. https://eur-lex.europa.eu/legal-content/...
Dear Mr McLaren,
We are following up with you concerning your access to documents request
2024/3426.
On 28 June we sent you a message asking for your postal address.
Can we kindly ask you to follow up to the attached email and provide us
with your postal address? In the absence of your postal address, we will
not able to process your request and we will close this case.
Many thanks in advance.
With kind regards,
SANTE ACCESS TO DOCUMENTS
Dear Health and Food Safety,
Address is:
[address]
[address]
[address]
Yours faithfully,
Neil Mclaren
Dear Sir or Madam,
We hereby acknowledge the receipt of your request for access to documents
sent on 28/06/2024 and registered on 08/07/2024 under the case number
2024/3426.
We will handle your request within 15 working days as of the date of
registration. The time-limit expires on 29/07/2024. 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
[1]the privacy statement.
Yours faithfully,
Directorate-General for Health and Food Safety - Access to Documents
European Commission
References
Visible links
1. https://ec.europa.eu/info/principles-and...
Dear Mr Mclaren,
Please find attached a message concerning your request for access to
Commission documents registered under the above case number 2024/3426.
Kind regards,
DG SANTE, Unit B4
Dear Mr McLaren,
We are writing to you concerning your access to documents request EASE
2024/3426.
We acknowledge that the time limit expires today 20 August 2024, and
apologise in advance for the delay.
We would like to inform you that your request is being handled and
launched in the workflow. The reply will be sent to you as soon as it is
signed at the appropriate level.
Please be reassured that we are doing our utmost to provide you with the
required documents as soon as possible.
Thank you very much for your understanding.
Kind regards,
SANTE ACCESS TO DOCUMENTS
Dear Mr McLaren,
Please find attached a message concerning your request for access to
Commission documents registered under the above case number 2024/3426.
Please acknowledge the receipt of this message by return email.
Kind regards,
Secretariat
European Commission
Directorate–General for Health and Food Safety
Unit B4 Disease prevention and Health promotion
Dear Health and Food Safety,
Please find below our confirmatory application in relation to this request under Regulation 1049/2001. We look forward to your response within ten working days.
Before we enter into the substance of the refusal, we would like to note that the list of relevant documents provided to us is incomplete. We understand a meeting may have taken place between the Commission and the Ombudsman on 28th July. It does not seem credible that there are no emails referring to such meeting nor the minutes of it are included in the list of relevant documents. Please ensure that the list of relevant documents provided to us is both accurate and complete in further responses.
In terms of the denial issued by the Commission on 28th August 2024, we do not agree that the documents are protected from disclosure as the Commission argues. The general rule is that “the public is to have access to the documents of the institutions and refusal of access is the exemption” (T-264/04, WWF European Policy Programme v Council). The bar for refusal has not been met in this case.
The Commission’s assertion that disclosure of the documents would “affect the climate of mutual trust between the European Ombudsman and the European Commission” is not sufficient reason to deny full access to the documents requested. The Commission is obliged to weigh opposing interests in any given situation: namely the risks of disclosure against the benefits of transparency (T-354/21, Client Earth v Commission). Such an assessment is missing in the response received. Given that the investigation concerns the impartiality of contractors whose core objective according to the contract notice (HADEA/2022/OP/0011) is to “support the implementation and further development of the EU’s tobacco control policy and legislation” (emphasis added), there is an overriding public interest in favour of disclosure given the impact of legislative files on European citizens (C-39/05 P and C-52/05 P, Sweden and Turco v Council). This is set out in Recital 2 of Regulation 1049/2001 itself.
The Institutions may not refuse access to documents on the sole grounds of vague, abstract, allegations as to the undermining of mutual trust [between the Member States and the Commission] (joined cases T-371/20 and T-554/20, Pollinis Frane v European Ombudsman). The reply offered by the Commission offers only an unsubstantiated allegation of the undermining of mutual trust.
In order to issue a denial, disclosure must endanger the completions of inspections, investigations or audits (T-223-12, Ntouvas v ECDC paragraph 109). In this case, we do not believe that the purpose of the Ombudsman’s investigation, which is to determine whether DG SANTE behaved inappropriately (or committed “maladministration”) while awarding a framework contract, would be at all affected by the disclosure of the documents sought.
If the Commission disagrees, it is obliged to undertake a review of the documents it has chosen not to disclose and explain how access to each individual document could specifically and effectively undermine the interest protected (C-39-05 P and C-52-05 P, Sweden and Turco v Council, paragraph 49). The justification provided must explain how public disclosure would entail a specific risk. It cannot be too generic as it must enable the applicant to understand the reasons for the denial (T-552/19 OP, Malacalza Investimenti Srl v ECB). The Commission must justify the need for protection, and indeed whether that protection applies to the whole document, or just parts of it (T-391-03, Yves Franchet and Daniel Byk v Commission). No such review or explanation has taken place in this case, and the justifications have been entirely generic, simply referring to the third indent of Article 4(2) of the Regulation. The use of a general presumption for ongoing investigations does not exempt the Commission from this requirement (T-59/09, Germany v Commission).
Moreover, the risk of undermining a protected interest must be reasonably foreseeable and not purely hypothetical (T-211/00, Aldo Kuijer v Council). The reason given by the Commission in this case – that it would “affect the climate of mutual trust” – is purely hypothetical. If the Commission is not able to provide a justification which includes a reasonably foreseeable risk stemming from the disclosure, then access must be granted.
Should the Commission continue to deny access to some or all of the documents requested, we would expect to see such an assessment in its response. It should have done this before the adoption of the decision. Given that the request concerns ten documents, we believe it would be incorrect for the Commission to subsequently argue that such a request constitutes an excessive administrative burden.
The Ombudsman’s investigation into the conduct of the Commission is not an investigation covered by Article 4(2) third indent.
The concept of an investigation is not defined by Regulation 1049/2001. However, it has been defined in case law as a formalised Commission procedure that has the purpose of collecting and analysing information in order to enable the institution to take a position (T-128/14, Daimler v Commission and C-331/15 P, Schlyter v Commission). In this case, the investigation is being conducted by the Ombudsman, which is a separate body to the European Commission. It is, in fact, the Commission itself that is being investigated. We therefore do not accept that the third indent of Article 4(2) can apply in this case.
Potential Judicial review of the meaning of “investigation” in this instance is not sufficient reason to continue applying the exemption (T-238-05, Editions Jacob v Commission, para 77).
We look forward to your response within ten working days.
Yours sincerely,
Neil McLaren
Dear Sir or Madam,
We hereby acknowledge the receipt of your confirmatory request for case
2024/3426, sent on 02/09/2024 and registered on 03/09/2024.
We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 24/09/2024. We will let
you know if we need to extend this time limit for additional 15 working
days.
Yours faithfully,
Secretariat-General - Access to Documents
European Commission
Dear Health and Food Safety,
I would like to make a correction in the confirmatory application sent yesterday. The second sentence of the second paragraph reads:
"We understand a meeting may have taken place between the Commission and the Ombudsman on 28th July.”
It should read:
"We understand a meeting may have taken place between the Commission and the Ombudsman on 28th June.”
Please accept this correction and read the confirmatory application accordingly.
Kind regards,
Neil Mclaren
Dear Mr McLaren,
Thank you very much for this additional information that we received safely. We have forwarded this, as well as your confirmatory application, to the Secretariat-General, Access to Documents Team, that will follow up with you as needed.
If there is anything else that you might need, please do not hesitate to contact us.
With kind regards,
SANTE ACCESS TO DOCUMENTS
Dear Mr McLaren,
We are writing concerning your confirmatory request for access to
Commission documents for case 2024/3426 registered on 03/09/2024.
We are currently working on your confirmatory request. However, we have
not yet been able to gather all the elements necessary to carry out a full
analysis of your request. Due to the need to conduct internal
consultation, we will not be able to send you the reply within the
prescribed time limit expiring on 24/09/2024.
Therefore, in line with Article 8(2) of [1]Regulation (EC) No 1049/2001 we
need to extend this time limit by 15 additional working days. The new time
limit expires on 15/10/2024.
We apologise for any inconvenience this may cause.
Kind regards,
SG C.1 - Access to documents team
References
Visible links
1. https://eur-lex.europa.eu/legal-content/...
Dear Health and Food Safety,
A significant amount of time has passed since my initial request, and I have yet to receive a response. As noted in your previous communication, the extended deadline expired on October 15th.
If I do not receive a reply by 20 December 2024—seven days from today—I will be reporting this failure to the European Ombudsman.
I trust you will resolve this matter swiftly.
Yours faithfully,
Neil McLaren