Dear Energy,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, and with reference to the Aarhus Convention, due to the environmental nature of this inquiry, I am requesting documents which contain the following information:

- the results of phase 2 of the project of review of high ILUC risk fuels led by the Technical Assistance for the European Commission (https://iluc.guidehouse.com/news/lot-1/3...), including a review of all relevant aspects of the report on feedstock expansion.
- update of the Commission report on the status of production expansion of relevant food and feed crops worldwide based on this data, which was due 30 June 2021, as stipulated by the Article 7 of the Delegated Regulation 2019/807.

The basis of this request is the delay of the European Commission to produce this report.
Moreover, the WTO in its ruling of the dispute following a complaint by Malaysia on certain measures concerning palm oil and palm oil crop based biofuels (DS600) declared that the European Union failed to conduct a timely review of the data used to determine which biofuels were high ILUC risk. Hence, the Commission should publish this data as soon as possible.

I would prefer to receive documents electronically but if that is not possible please use the following postal address:

Transport & Environment
Sq. de Meeûs 18, 1050 Ixelles
Brussels, Belgium

I would like to make clear I prefer you produce the documents on a rolling basis. At no point should the Commission's search for—or deliberations concerning—certain documents delay the production of others that the Commission has already retrieved and elected to produce.

Please confirm having received this application. I look forward to your reply within 15 business days, according to the regulation

Sincerely,
Barbara Smailagic

Dear Legal Service,

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

On November 24th I filed an access to documents request for:

- the results of phase 2 of the project of review of high ILUC risk fuels led by the Technical Assistance for the European Commission (https://iluc.guidehouse.com/news/lot-1/3...), including a review of all relevant aspects of the report on feedstock expansion.

- update of the Commission report on the status of production expansion of relevant food and feed crops worldwide based on this data, which was due 30 June 2021, as stipulated by Article 7 of the Delegated Regulation 2019/807.

My request was acknowledged on the same day and registered under the reference 2024/6578.

On January 28, Unit C2 of DG ENER fully refused access to the documents I requested.

By means of this confirmatory application, I would like to appeal DG ENER’s refusal of access to these documents. I hereby argue that it contravenes the established EU case law, and therefore should be released in full.

In its response letter, the Commission argues the exceptions provided for in Article 4(3), first subparagraph, "protection of the decision-making process " of Regulation (EC) No 1049/2001:

“[a]ccess to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure”.

In particular, DG ENER justifies the application of the above-mentioned exception by arguing that “ (...) the report “Support for the implementation of the provisions on ILUC” and the draft “Commission report on the status of the production expansion of relevant food and feed crops worldwide” are linked to the review of the criteria set out in Commission Delegated Regulation (EU) 2019/807 and (...) the (d)isclosure of the documents would reveal preliminary views and policy options which are currently under consideration. More specifically, it would disclose preliminary data on the expansion of feedstocks as well as considerations about options for the further development of the criteria, which would very likely raise expectations about the final decision of the Commission on a very sensitive policy matter”.

It is also stated that “The Commission's services must be free to explore all possible options in preparation of a decision free from external pressure. “

And finally, DG ENER states that they “see no elements capable of showing the existence of an overriding public interest in disclosure of the documents requested that would outweigh the public interest of the protection of the legal advice and the institutions’ decision-making process.”

To that extent, I would like to state:

First, I am not requesting the draft but the final “Commission report on the status of the production expansion of relevant food and feed crops worldwide” and the report “Support for the implementation of the provisions on ILUC” which was the basis for the final “Commission report on the status of the production expansion of relevant food and feed crops worldwide”. The European Commission had a legal obligation “to review by 30 June 2021 all relevant aspects of the 2019 report on feedstock expansion” under Article 7 of the Commission Delegated Regulation (EU) 2019/807 of 13 March 2019. Hence, the disclosure of these documents would not reveal preliminary data but final results on the expansion of feedstocks as well as considerations about options for the further development of the criteria.

Second, as regards to the statements of the European Commission that:

this “would very likely raise expectations about the final decision of the Commission on a very sensitive policy matter” and that “The Commission's services must be free to explore all possible options in preparation of a decision free from external pressure”

It must be recalled that, according to well-established case law, EU authorities must demonstrate how disclosure would “specifically and actually” undermine the protection of the decision-making process under Article 4 of Regulation 1049/2001. Authorities must also demonstrate how this risk is “reasonably foreseeable and not purely hypothetical”. (C-506/08 P, C-280/11 P, T-710/14)

To this extent, the arguments put forward by unit C2 of DG ENER lack the certainty and the evidence required by the cited case law.

Third, it is worth mentioning that, if by “external pressure” the Commission is referring to the ability of members of the public to express their opinion about a given subject, decision-making process, or court proceeding, then this external influence can better be defined as citizens’ exercise of their right of freedom of expression, which is a fundamental right under Article 11 of the EU Charter of Fundamental Rights, and their right to participate in the EU democratic process, enshrined in Article 15 of the Treaty on the Functioning of the European Union (TFEU): "In order to promote good governance and ensure the participation of civil society, the Union's institutions, bodies, offices and agencies shall conduct their work as openly as possible."

I would like to recall that one of the essential pillars on the basis of which the EU was founded is a participatory democracy. To this extent, “external influence” cannot in any way be considered grounds on which access to the requested documents can be refused, but only an incentive for greater transparency.

Fourth, I would like to argue that there is indeed an overriding public interest in the disclosure of the requested documents. These documents relate to EU policies of extreme importance in the realm of environmental protection, the fight against climate change, and the protection of human rights as they relate to efforts against indirect deforestation related to EU imports of crop biofuels originating from highly biodiverse areas of third countries where the same sustainability safeguards or practices of protecting human rights are not applied.

The delay in the Commission releasing these documents also has important trade implications. WTO rulings in the cases of EU dispute with Malaysia and with Indonesia already flagged that the EU failed “to conduct a timely review of the data used to determine which biofuels are high ILUC risk” and “ this results in arbitrary or unjustifiable discrimination between countries where the same conditions prevail”. The European Commission was legally obligated to review the criteria set out in Commission Delegated Regulation (EU) 2019/807 by September 2023 under Article 26 of the Directive (EU) 2018/2001.

This means that the overriding public interest in the disclosure of these documents is undeniable and the transparency from the European Commission in this matter is of utmost importance.

I am therefore hereby calling on the Legal service of the European Commission to:

- rectify its initial assessment that the report “Support for the implementation of the provisions on ILUC” and the Commission report on the status of the production expansion of relevant food and feed crops worldwide fall under the exceptions provided for in Article 4(3), first subparagraph, "protection of the decision-making process ") of Regulation (EC) No 1049/2001

- rectify its assessment that there is no overriding public interest in the disclosure of these documents

and disclose the content of the requested documents in full

Please don’t hesitate to contact me if you have any doubts or questions regarding this confirmatory application.

A full history of my request and all correspondence is available here:
https://www.asktheeu.org/request/access_....

Thank you in advance.

Yours faithfully,
Barbara Smailagic

Dear Energy,

By law, under all circumstances, we should have already received a reply to this appeal.

We kindly ask you to provide us with a response promptly. Otherwise, we will be forced to take this affair to the Ombudsman.

Yours faithfully,

Barbara Smailagic