Klaas Van Dijk
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Stockholm, 14 June 2021
Our ref.: DIR-2021-OUT-2673-AAElKh
Dear Mr Van Dijk,
Re: Your confirmatory application for access to documents – Ref 21-2523-1
I refer to your email dated 21 May 2021 registered on 24 May 2021 under the above-mentioned reference
number. In your email you make a confirmatory application with regards to our letter SMS-2021-OUT-
2198-MCElKh of 12 May 2021, replying to your initial application of 28 April 2021.
Your application concerns the fol owing documents (hereinafter “the Documents”):
- A ful version of the response, together with al attachments, which was sent in the beginning of
February 2021 by the scientific journal Eurosurveil ance to Pieter Borger / the International
Consortium of Scientists in Life Sciences (ICSLS)
- A ful y anonymised version of the peer review reports of the 5 external experts who have conducted
a review on the text which was sent by Pieter Borger / the International Consortium of Scientists in
Life Sciences (ICSLS) to Eurosurveillance in the end of November 2020
In our response from 12 May 2021, ECDC considered the public response to the retraction request
published on 4 February 2021 as one “document“ which is openly available at the following address:
https://www.eurosurveil ance.org/content/10.2807/1560-7917.ES.2021.26.5.2102041?crawler=true .
Following your confirmatory application, we understand that you also wanted to receive a copy of any
correspondence regarding the response sent by
Eurosurveil ance to Pieter Borger or ICSLS.
Regarding your request for the peer review report, we have identified another document consisting in a
communication to Eurosurveil ance that includes the opinion of five laboratory experts that reviewed
detailed allegations with respect to scientific flaws in the
Corman et al. article.
I hereby confirm ECDC’s initial decision of 21 May 2021 refusing to disclose the Documents.
I. The nature of Eurosurveil ance
and how it operates
Before going into details about the legal aspects of my decision, I would like to explain briefly, what
Eurosurveil ance is and how it operates.
1/5
European Centre for Disease Prevention and Control (ECDC)
Gustav den III:s Boulevard 40, 169 73 Solna, Sweden
www.ecdc.europa.eu
Phone: +46 (0)8 58 60 10 00 - Fax: +46 (0)8 58 60 10 01
Eurosurveil ance is a scientific journal published by ECDC. ECDC, as publisher, grants editorial independence
to the editorial team of Eurosurveillance. Therefore, even if ECDC is the legal entity responsible to reply to
your application (as Eurosurveillance is not a separate legal entity from ECDC), to take my decision, I have
considered the particular status of Eurosurveil ance within ECDC.
The editorial policy of Eurosurveil ance abides to the standards of the International Committee of Medical
Journal Editors and other editorial associations. The journal’s editorial processes are based on established
and widely exercised standards for scholarly publishing in the scientific community. Eurosurveil ance applies
a policy of double-blind peer review where both the authors’ and the reviewers’ identities are kept confidential.
Under the journal’s current editorial policy and procedures, peer reviewers of an article work under the
premise that their work is not made available to the public.
The same applies to authors, who submit their contributions to the journal knowing that, unless published,
such contributions will not be made available otherwise to the public, and neither will the peer reviews related
to their contributions nor internal correspondence between the authors and Eurosurveil ance.
II. Exceptions applicable to the disclosure of the Documents
a. The exception of art. 4.2 third subparagraph of Regulation 1049/2001:
disclosure would undermine the purpose of investigations.
Disclosing the Documents would breach the confidentiality commitment between Eurosurveil ance and its
contributing authors and reviewers, causing a serious and irreparable damage to this trustworthy relation
and the reputation of the journal. In particular, sharing reviewer reports with third parties would violate the
assumed confidentiality obligations as per International Committee of Medical Journal Editors and World
Association of Medical Editors for journals that apply the model of double-blind peer review.
As a consequence, if the Documents were shared with third parties, this would set a precedent for the future
and seriously undermine core elements of the journal’s operating model and established trustful relation with
contributors. Authors may not submit their publications to Eurosurveil ance any longer, and high numbers of
reviewers would be reluctant to conduct peer reviews for the journal. The result would be that the journal
would not be able to operate any longer as at present.
For the reasons above, disclosure would undermine the purpose of scientific investigations by ECDC. Such
purpose in this case is disseminating scientific data related to surveillance and public health by publishing
scientific articles in Eurosurveil ance.
ECDC has also come to the conclusion that neither a full nor a partial disclosure of the Document is possible,
as even a partial disclosure would undermine the interests protected by the exception of art. 4.2 third
subparagraph of Regulation 1049/2001.
2/5
European Centre for Disease Prevention and Control (ECDC)
Gustav den III:s Boulevard 40, 169 73 Solna, Sweden
www.ecdc.europa.eu
Phone: +46 (0)8 58 60 10 00 - Fax: +46 (0)8 58 60 10 01
b. The exception of art. 4.3 of Regulation 1049/2001: disclosure would seriously
undermine the decision-making process of ECDC.
The peer reviewer reports are internal documents intended solely to guide editorial decision-making in form
of candid analyses and deliberations. The confidentiality of such documents is necessary to guarantee that
both the authors of the reports and the editors of Eurosurveillance are protected from external interference
and pressure when reviewing and evaluating a submission. The authors of the reports have been able to
express their opinions freely and openly because ECDC (through Eurosurveil ance) had committed to keep
their reports confidential.
ECDC acknowledges the fact that you requested a ful y anonymised version of the reports. However, the
confidentiality obligations extend beyond the protection of the identity of the authors, also encompassing
the content of the reports. Not respecting such confidentiality obligations would set a precedent, and expose
ECDC staff, authors, and peer-reviewers of Eurosurveillance to the risk to undue external pressure. Ultimately,
such external pressure would hamper the independent editorial decision-making process of Eurosurveil ance
(and by extension, of ECDC) with regards to the editorial choices of the journal.
Given the area of expertise needed in this matter, it is possible that scientists who know the subject at hand
would be able to recognise who the reviewers are based on clues such as the writing style, comments on
the subject matter itself, other literature referred to etc. - even if the journal would redact and anonymise
the reviews/comments.
The effort and achievement of double-blinding would be jeopardised by disclosing and making the review
public. As mentioned before, sharing reviewer reports with third parties – whether redacted or not - would
violate the assumed confidentiality obligations as per International Committee of Medical Journal Editors
(ICMJE) and World Association of Medical Editors (WAME) for journals that apply this peer review model.
c. The exception of art. 4.1(b) of Regulation 1049/2001: disclosure would
undermine the protection of personal data.
The documents related to the first part of your request (“a ful version of the response together with al
attachments”) contain personal data related to the ECDC staff members and Pieter Borger. Pursuant to Article
4(1) (b) of Regulation (EC) No 1049/2001, access to a document has to be refused if its disclosure would
undermine the protection of privacy and the integrity of the individual, in particular in accordance with Union
legislation regarding the protection of personal data. The applicable legislation in this field is Regulation (EU)
No 2018/1725.
When access is requested to documents containing personal data, Regulation (EU) No 2018/1725 becomes
fully applicable. According to Article 9.1(b) of this Regulation, personal data shall only be transferred to
recipients if they establish the necessity of having the data transferred to them and if there is no reason to
assume that the legitimate rights of the persons concerned might be prejudiced.
3/5
European Centre for Disease Prevention and Control (ECDC)
Gustav den III:s Boulevard 40, 169 73 Solna, Sweden
www.ecdc.europa.eu
Phone: +46 (0)8 58 60 10 00 - Fax: +46 (0)8 58 60 10 01
I consider that, with the information available, the necessity of disclosing the aforementioned personal data
to you has not been established. In fact, you did not provide any justification to establish the necessity of
the transfer with regards to the personal data specifically. It is on the contrary certain that the disclosure
would prejudice the legitimate interests of the data subjects, for the reasons explained above in paragraph
II.b (namely, the concrete risk of external pressure and interference with their private lives).
III. Lack of overriding public interest, partial disclosure
The journal’s respective editorial policy adheres to the ICMJE recommendations on responsibilities in the
submission and peer review process. Point 2 stresses that “Editors [therefore] must not share information
about manuscripts, including whether they have been received and are under review, their content and
status in the review process, criticism by reviewers, and their ultimate fate, to anyone other than the authors
and reviewers.”
As mentioned in the editorial note on 3 December 2020, the journal takes comments relating to scientific
content, the processing of articles and editorial transparency seriously and thus initiated a thorough
investigation around the comments about the Corman et al. paper which involved multiple parties.
This investigation fol owed internal procedures and standard editorial guidelines supported by a group of
external experts. Following this thorough investigation which did not identify major flaws in the Corman et
al. article that would warrant a retraction according to existing criteria, the editorial team — unanimously
supported by its associate editors — decided not to retract the Corman et al. article. This result of the
investigation was published on 4 February 2021 thus informing the public on the reasons for the decision.
This is an entirely editorial decision of the journal in accordance with established editorial standards and the
arguments brought forward by you do not indicate an overriding interest in deviating from this policy in this
instance.
While there is a possibility to derogate from the principle of confidentiality by the journal/editor as indicated
by ICMJE, Eurosurveil ance decided that there was no need to deviate from its established policy in this case.
The journal addressed an issue that was discussed in the public domain and summarised the findings of the
internal investigation in the note published on 4 February 2021, hence providing a response that is publicly
available, based on scientific review and considerations of editorial board members.
I cannot identify that releasing privileged communication of the journal (here in form of peer reviewer’s
comments or correspondence with authors) is the only means to refute arguments publicly presented by
Borger et al. as the authors of the retraction request have made their request publicly available. The journal
has responded with publicly available editorial notes (3 December 2020 and 4 February 2021). And in the
meantime, scientists have also responded to the public review from Borger et al. in several ways during the
last months. There is no identifiable added public interest brought forward by you that would substantiate
the need to disclose e.g. the peer reviews that overall come to the same conclusion as experts who have
published their “reviews” of the retraction request [see some examples: Beyer 1, Beyer 2, Visser, Wilson].
4/5
European Centre for Disease Prevention and Control (ECDC)
Gustav den III:s Boulevard 40, 169 73 Solna, Sweden
www.ecdc.europa.eu
Phone: +46 (0)8 58 60 10 00 - Fax: +46 (0)8 58 60 10 01
Particularly the example brought forward by you of an expert who accidental y revealed his role as reviewer
illustrates why the confidentiality principle should not be deviated from in this instance in order to protect
reviewers from similar personal attacks that this reviewer was subject to.
I have considered if partial disclosure of the documents could be possible. However, even the disclosure of
redacted versions of the documents would jeopardize the interests protected by the exceptions mentioned
in art. II above.
IV. Remedies
You can bring an action to the Court of Justice of the European Union against the part of this decision
concerning the confirmatory application, in accordance with art. 263 of the Treaty on the Functioning of the
European Union. You also can lodge a complaint to the European Ombudsman, in accordance with art. 228
of the Treaty on the Functioning of the European Union.
Yours faithful y,
Digitally signed by:
ANDREA AMMON (EUROPEAN CENTRE FOR DISEASE
PREVENTION AND CONTROL)
Date: 2021-06-14 09:32:14 UTC
Andrea Ammon
Director
5/5
European Centre for Disease Prevention and Control (ECDC)
Gustav den III:s Boulevard 40, 169 73 Solna, Sweden
www.ecdc.europa.eu
Phone: +46 (0)8 58 60 10 00 - Fax: +46 (0)8 58 60 10 01
