ANNEX
REPLY TO CONFIRMATORY APPLICATION 18/c/02/23,
made by email on 22 May 2023 and registered on the same day
The Council has considered the confirmatory application under Regulation (EC) No 1049/2001 of the
European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament,
Council and Commission documents (OJ L 145, 31.5.2001, p. 43) (hereafter referred to as "Regulation (EC)
No 1049/2001") and Annex II to the Council's Rules of Procedure (Council Decision 2009/937/EU,
OJ L 325, 11.12.2009, p. 35) and has come to the following conclusion:
Following an initial application made on the 13 March 2023, the applicant requested access
to 37 WK documents distributed between 1 and 15 February 2023. In its replies dated 3rd
and 27th April 2023 the General Secretariat of the Council (“GSC”):
a. provided full access to the following documents:
WK 847/2023, WK 1190/2023, WK 1227/2023,
WK 1227/2023 REV 1, WK 1232/2023, WK 1591/2023, WK 1630/2023, WK 1760/2023, WK
1825/2023, WK 1825/2023 REV 1, WK 1935/2023, WK 2057/2023, WK 2057/2023 REV 1,
WK 2185/2023, WK 2185/2023 ADD 1, WK 2213/2023, ST 5036/2023 REV 1, WK 843/2023,
WK 843/2023 ADD 1, WK 843/2023 ADD 2, WK 1629/2023, WK 1629/2023 ADD1, WK
1814/2023, WK 1814/2023 ADD1, WK 1899/2023, WK 1141/23, WK 1141/23 ADD 1 and
WK
4366/2023.
b. granted partial access to the following documents:
WK 1912/23 for which
full disclosure was
refused on the basis of Article 4(1)(a) first indent of Regulation (EC) No 1049/2001 as it would
undermine the protection of the public interest as regards public security
and
WK 1899 2023
ADD1 in which a paragraph relating to an intervention of the Council Legal Service (CLS) was
redacted on the basis of Article 4(2) second indent of Regulation (EC) No 1049/2001 (protection of
legal advice).
c. informed the applicant that documents
WK 1236/2023 INIT, WK 1629/2023 COR1, WK
1706/2023 and
WK 1877/2023, had never been issued as the competent services had reserved these
numbers for documents which they had planned to issue but finally never drafted.
d. informed the applicant that document
WK 1505/23 had already been sent to the applicant
previously in the context of another request for access to document (reference 23/0669).
On 22 May 2023, the applicant submitted a confirmatory application asking the Council to
reconsider the GSC's position (hereafter the “confirmatory application”), taking note of the
security reasons preventing the Council from giving full access to document
WK 1912/23 but requesting full access to document
WK 1899 2023 ADD1.
Document
WK 1899 2023 ADD1 is a working document issued by the GSC to delegations
in the Working Party on Social Questions in the context of the examination of the Proposal
for a Directive on improving working conditions in platform work. The part of the requested
document to which access was initially refused by the GSC contains a direct reference to an
intervention of the CLS made in this context.
In essence, in the present confirmatory application, the applicant argued that there was no
“
general need for confidentiality as regards the opinions of the Council Legal Service” and
that Regulation (EC) No 1049/2001 imposes “
in principle, an obligation to disclose them”.
The applicant also considered that the “
sensitivity” of the legal advice did not warrant the
application of Article 4(2) second indent of Regulation (EC) No 1049/2001, in particular, in
the case of a document issued in the context of a legislative procedure.
The Council has carefully considered this confirmatory application, re-assessing, in full
consideration of the principles underlying Regulation (EC) No 1049/2001 and on account of
the Applicant’s arguments, whether full public access can be provided to document
WK
1899 2023 ADD1.
ASSESSMENT OF THE REQUEST UNDER REGULATION (EC) NO 1049/2001
Having thoroughly examined the document concerned in the light of the applicant's
arguments, the Council has re-assessed the request for access in full consideration of the
principles underlying Regulation (EC) No 1049/2001, including the aim of ensuring the
widest possible public access to documents.
The Council notes that, since the GSC’s first reply to the applicant’s initial request, the
examination of the legislative file in the context of which the requested document was issued
has made important progress. In this context, the part of the requested document can no
longer be considered as sensitive and no longer falls within the scope of Article 4(2) second
indent Regulation (EC) No 1049/2001. Consequently, document
WK 1899 2023 ADD1 may
now be fully disclosed.
This decision cannot constitute a precedent for a different approach as regards preparatory
documents in the framework of a legislative process and is in line with the standard practice
adopted by the Council in examining the content of each and every requested document in
its own merit and carefully verifying the state of advancement of the files under scrutiny.
CONCLUSION
For the reasons set out above, the Council concludes that full access can be granted at this
stage to document
WK 1899 2023 ADD1, since its content is no longer covered by any of
the exceptions to disclosure in Regulation (EC) No 1049/2001.
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