Dear Council of the European Union,

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:

the monitoring of the implementation of the 2017 Guidance on tax privileges related to special economic zones, which includes but is not limited to the questionnaire for this monitoring presented at the COCG subgroup on internal issues meeting on 23 October 2020, responses from the Member States which were requested by 31 March 2021 and documents related to clarifications requested on 19 may 2021 from the Member States concerned and those clarifications.

thank you in advance,

Yours faithfully,

Elodie Lamer

Dear Postmaster Consilium,

I would like to file a confirmatory application for disclosure of all documents in question. In your reply, you state that disclosure of the documents would seriously undermine the decision-making process, while invoking both Article 4(1)(a), fourth indent, and Article 4(3), first subparagraph. As you do not make clear to which of the documents you deny access under which provision, I would like to remind you of Article
4(6) of Regulation 1049/2001, which states that if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

As regards your refusal under Article 4(1)a, fourth indent, I contend that you misapplied the law. As case law has showed, it is necessary to demonstrate that disclosure would undermine the public interest based on the content of the document or documents in question. The mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception (Case T 2/03 Verein für Konsumenteninformation v Commission [2005] ECR II 1121, paragraph 69). In principle, such an application can be justified only if the institution has previously determined, first, that access to the document was likely, specifically and actually, to undermine the protected interest.

As regards your refusal under Article 4(3), first subparagraph, I equally content that you have not sufficiently demonstrated that disclosure of the document would "seriously undermine" the institution's decision-making process, as is required under this exception. In this context, I would like to remind the Council of the findings of the court in the De Capitani ruling (T-540/15). The Court pointed out that “it is precisely openness in the legislative process that contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.” [para. 78] The Court drew a link between openness and the strengthening of democracy and noted that the possibility for citizens to find out the considerations underpinning legislative action was a precondition for the effective exercise of democratic rights. It further noted that the Court had never before recognized a presumption of non-disclosure in respect of documents that formed part of the legislative process. It observed that “the effectiveness and integrity of the legislative process cannot undermine the principles of publicity and transparency which underlie that process.” [para. 83] The Court accepted that a risk of external pressure could constitute a legitimate ground for restricting access to documents related to the decision-making process, but “the reality of such external pressure must … be established with certainty, and evidence must be adduced to show that there is a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to that external pressure”. [para. 99]

Furthermore, I would like to contend that there is an overriding public interest in disclosure. The lack of transparency on tax loopholes in the past have led to leaks in the press showing how the wealthiest use and abuse countries’ tax systems to reduce their tax bills, sometimes practically to nothing. It was thanks to those leaks and thus transparency and the public scrutiny that followed that measures such as the anti-tax avoidance directive were adopted. The Code of Conduct group has recognized that the opacity around its work is an issue that needs to be addressed. There is little transparency on those special economic zones and the possible loopholes that their tax privileges might open. It would also be interesting to know what type of support to the economic can be considered in those zones as not distorting competition with other countries.

For those reasons, I call on the Council to reconsider its previous decision and grant access to the requested documents.

Many thanks in advance,
Kind regards,
Elodie

Dear TRANSPARENCY Access to documents (COMM),

I would like to file a confirmatory application for disclosure of all documents in question. In your reply, you state that disclosure of the documents would seriously undermine the decision-making process, while invoking both Article 4(1)(a), fourth indent, and Article 4(3), first subparagraph. As you do not make clear to which of the documents you deny access under which provision, I would like to remind you of Article
4(6) of Regulation 1049/2001, which states that if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

As regards your refusal under Article 4(1)a, fourth indent, I contend that you misapplied the law. As case law has showed, it is necessary to demonstrate that disclosure would undermine the public interest based on the content of the document or documents in question. The mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception (Case T 2/03 Verein für Konsumenteninformation v Commission [2005] ECR II 1121, paragraph 69). In principle, such an application can be justified only if the institution has previously determined, first, that access to the document was likely, specifically and actually, to undermine the protected interest.

As regards your refusal under Article 4(3), first subparagraph, I equally content that you have not sufficiently demonstrated that disclosure of the document would "seriously undermine" the institution's decision-making process, as is required under this exception. In this context, I would like to remind the Council of the findings of the court in the De Capitani ruling (T-540/15). The Court pointed out that “it is precisely openness in the legislative process that contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.” [para. 78] The Court drew a link between openness and the strengthening of democracy and noted that the possibility for citizens to find out the considerations underpinning legislative action was a precondition for the effective exercise of democratic rights. It further noted that the Court had never before recognized a presumption of non-disclosure in respect of documents that formed part of the legislative process. It observed that “the effectiveness and integrity of the legislative process cannot undermine the principles of publicity and transparency which underlie that process.” [para. 83] The Court accepted that a risk of external pressure could constitute a legitimate ground for restricting access to documents related to the decision-making process, but “the reality of such external pressure must … be established with certainty, and evidence must be adduced to show that there is a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to that external pressure”. [para. 99]

Furthermore, I would like to contend that there is an overriding public interest in disclosure. The lack of transparency on tax loopholes in the past have led to leaks in the press showing how the wealthiest use and abuse countries’ tax systems to reduce their tax bills, sometimes practically to nothing. It was thanks to those leaks and thus transparency and the public scrutiny that followed that measures such as the anti-tax avoidance directive were adopted. The Code of Conduct group has recognized that the opacity around its work is an issue that needs to be addressed. There is little transparency on those special economic zones and the possible loopholes that their tax privileges might open. It would also be interesting to know what type of support to the economic can be considered in those zones as not distorting competition with other countries.

For those reasons, I call on the Council to reconsider its previous decision and grant access to the requested documents.

Many thanks in advance,
Kind regards,
Elodie

Dear Council of the European Union,
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 'Tax privileges related to special economic zones'.

In your reply, you state that disclosure of the documents would seriously undermine the decision-making process, while invoking both Article 4(1)(a), fourth indent, and Article 4(3), first subparagraph. As you do not make clear to which of the documents you deny access under which provision, I would like to remind you of Article
4(6) of Regulation 1049/2001, which states that if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

As regards your refusal under Article 4(1)a, fourth indent, I contend that you misapplied the law. As case law has showed, it is necessary to demonstrate that disclosure would undermine the public interest based on the content of the document or documents in question. The mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception (Case T 2/03 Verein für Konsumenteninformation v Commission [2005] ECR II 1121, paragraph 69). In principle, such an application can be justified only if the institution has previously determined, first, that access to the document was likely, specifically and actually, to undermine the protected interest.

As regards your refusal under Article 4(3), first subparagraph, I equally content that you have not sufficiently demonstrated that disclosure of the document would "seriously undermine" the institution's decision-making process, as is required under this exception. In this context, I would like to remind the Council of the findings of the court in the De Capitani ruling (T-540/15). The Court pointed out that “it is precisely openness in the legislative process that contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.” [para. 78] The Court drew a link between openness and the strengthening of democracy and noted that the possibility for citizens to find out the considerations underpinning legislative action was a precondition for the effective exercise of democratic rights. It further noted that the Court had never before recognized a presumption of non-disclosure in respect of documents that formed part of the legislative process. It observed that “the effectiveness and integrity of the legislative process cannot undermine the principles of publicity and transparency which underlie that process.” [para. 83] The Court accepted that a risk of external pressure could constitute a legitimate ground for restricting access to documents related to the decision-making process, but “the reality of such external pressure must … be established with certainty, and evidence must be adduced to show that there is a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to that external pressure”. [para. 99]

Furthermore, I would like to contend that there is an overriding public interest in disclosure. The lack of transparency on tax loopholes in the past have led to leaks in the press showing how the wealthiest use and abuse countries’ tax systems to reduce their tax bills, sometimes practically to nothing. It was thanks to those leaks and thus transparency and the public scrutiny that followed that measures such as the anti-tax avoidance directive were adopted. The Code of Conduct group has recognized that the opacity around its work is an issue that needs to be addressed. There is little transparency on those special economic zones and the possible loopholes that their tax privileges might open. It would also be interesting to know what type of support to the economic can be considered in those zones as not distorting competition with other countries.

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

For those reasons, I call on the Council to reconsider its previous decision and grant access to the requested documents.

Yours faithfully,

elodie lamer