EBA Regular Use

Dear Mr Kattrup,

Thank you for your communication dated 23 December 2024. Firstly, please be informed that the EBA observed a public holiday period from 23 December to 6 January, and we have only now been able to review your email.

We regret to inform you that we have not received the access to documents request you are referring to. Consequently, we were unable to respond by the date mentioned in your email.

Please resubmit your original request to [email address] to ensure it reaches the appropriate unit for processing.

Kindly provide us with your email address for correspondence related to your request.

Yours faithfully,
EBA Legal and Compliance

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EBA Regular Use

Dear Mr Kattrup,

In our earlier email we have explained that we did not receive your initial application for access to documents and asked you to resubmit it, so we can handle it accordingly. We cannot assess a confirmatory request before assessing the initial application.

As mentioned in our previous email, please submit the initial application for access to documents clearly stating which documents are concerned by sending it directly to the following email address: [email address].

For easier communication, please submit your request directly from your email address or provide us with an email address to use for correspondence related to your request.

Kind regards,

EBA Legal and Compliance

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EBA Regular Use

Dear Mr Kattrup,

We hereby confirm receipt of your request for access to documents.

In accordance with Regulation (EC) No 1049/2001, your application will be processed within 15 working days. This deadline expires on 29/01/2025.

If this deadline needs to be extended, we will inform you in due course.

You have lodged your application via a private third-party website, which has no link with any institution or agencies of the European Union. Therefore, the EBA is not responsible for any technical issues or problems linked to the use of this system. We understand that the third party running the AsktheEU.org website usually publishes the content of applicants’ correspondence with the authority on that website including any personal data you may share.

Similarly, the third party publishes on that website any reply that the EBA will send to the email address of the applicants generated by the AsktheEU.org website.

If you do not want your correspondence with the EBA published on a private third-party website such as AsktheEU.org, you can provide us with a private e-mail address for communication. The EBA will then send all future electronic correspondence addressed to that private address and use it to reply to your request. You are responsible for informing the private third-party website about this change.

For information on how we process your personal data, please see the attached Privacy notice.

Sincerely,

EBA Legal and Compliance

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EBA Regular Use
Dear Mr Kattrup,
We refer to your request for access to documents under Regulation (EC) No
1049/2001 addressed to the European Banking Authority (EBA) and registered
on 8 January 2025, where you requested the following:

 a. First request - “Documents and data, such as but not limited to,
resumes, reference letters, correspondences, emails, SMS,
spreadsheets, and all other document related to the "Alleged
greenwashing cases" mentioned in the report "Report on greenwashing
monitoring and supervision*", page 15, where it is stated that:
"Alleged greenwashing cases in the EU financial sector (including the
EU banks) increased significantly until 2022 (around 206 cases
reported in 2022 against 40 in 2018), and the growth continued in 2023
(13.6% increase compared to 2022)".

[1]https://www.eba.europa.eu/sites/default/...

 a. Second request - The same data and documents as above on alleged
greenwashing cases from 2023 and now”.

The EBA strives to be transparent and open to the greatest extent
possible.

 1. Article 2(3) Regulation (EC) No 1049/2001 provides that documents
‘held’ by the EBA are documents drawn up or received by the EBA and in
its possession.   
 1. To respond to your requests, we have sought to identify all documents
that could be considered falling within the scope of your requests.
 1. Within those parameters:

 a. For your first request, we have identified in our possession a
non-public document with a spreadsheet of metrics data used for the
statement on page 15 and the chart on Figure 6. This document was
created by the third-party data provider [2]RepRisk and shared with
the EBA under a contract and with a Non-disclosure agreement. No other
documents are in the EBA’s possession, as the supporting data was
never transferred to the EBA, but accessed through RepRisk systems;
 a. Regarding your second request, we have identified a non-public
document in the EBA’s possession consisting of a spreadsheet of
metricsdata shared by RepRisk with the EBA based on a contract and a
Non-disclosure agreement.

 1. The EBA does not hold any other documents under the scope of your
requests.
 1. The EBA cannot answer positively to your requests and does not
disclose the identified documents for the following reasons:

Documents and data, such as but not limited to, resumes, reference
letters, correspondences, emails, SMS, and all other document referred to
in your request are not in the EBA’s possession.
As mentioned above, Regulation (EC) No 1049/2001 applies only to documents
that the Authority possesses at the time of the access to documents
request. Since we have not identified in our possession such documents,
the EBA cannot grant access to documents it does not hold.
The two identified documents (spreadsheets created by RepRisk) cannot be
disclosed as it would be contrary to the first indent of Article 4(2) of
the Regulation (EC) No 1049/2001 regarding commercial interests of a
natural or legal person. 

 a. Regarding the document identified in relation to your first request,
since this data was used in the Report and is a third-party document
under Article 4(3) of Regulation (EC) No 1049/2001, we consulted the
originator, RepRisk, with a view to assessing whether an exception
under Article 4(1) or 4(2) is applicable.

After consulting RepRisk, they emphasised that the exception under first
indent of Article 4(2) of the Regulation (EC) No 1049/2001 based on
commercial and proprietary interest, specifically their intellectual
property (“IP”) rights, applies to RepRisk’s proprietary metrics data
based on the following reasons:

• The metrics data in question is RepRisk’s IP. RepRisk licenses this
data to its clients subject to confidentiality requirements to avoid
breaches of RepRisk’s IP, particularly, to neutralise the risk of data
which have a commercial and legal value entering the public domain.
Disclosure of the data in question by the EBA would undermine
RepRisk’s interests in safeguarding its intellectual property.
• Publishing RepRisk’s proprietary data without full context on
RepRisk’s methodology, the scope, and the intended use of the data,
bears the risk of incorrect interpretation of what RepRisk data is and
how it is intended to be used. Such incorrect interpretations have the
potential to affect RepRisk’s commercial interests.

Additionally, the Non-disclosure agreement between the EBA and RepRisk
prevent the EBA from disclosing this information.
The EBA has not identified an overriding public interest in disclosure.

 a. Regarding the document identified in the EBA’s possession related to
your second request, it contains information not considered in the
Report. This information has not been used by the EBA so far, as it
concerns a period after the end of 2023. This document, similar to the
document we identified in relation to your first request, is subject
to the exception under the first indent of Article 4(2) of Regulation
(EC) No 1049/2001 (commercial and proprietary interest) for the
reasons explained above. Disclosure of this document would undermine
commercial interests of RepRisk since the identified document is part
of RepRisk suite of products and services that may be used only based
on the specific contractual conditions agreed with them.

The EBA has not identified an overriding public interest in disclosure.
Further and in the alternative, disclosure of the identified document
relative to your second request would be contrary to the third indent of
Article 4(2) of Regulation (EC) No 1049/2001 regarding the protection of
the purpose of inspections, investigations and audits.
This exception serves the unhindered conduct of inspections,
investigations, and audits. The concept of investigation, under this
exception covers a structured and formalised procedure that has the
purpose of collecting and analysing information in order to enable the
institution to take a position in the context of its functions.
As regards correspondence with third parties, it can also be decisive
whether the disclosure of such information could run the risk of adversely
affecting the willingness of these third parties to cooperate when such a
procedure is pending.
Disclosing the identified document would undermine the EBA’s ability to
carry out its tasks. This data has not yet been assessed by the EBA or
used for the execution of our tasks. The EBA needs to analyze this data,
assess its relevance and develop its own assessment and conclusions in a
broader context based on various sources of information.
The EBA has not identified an overriding public interest in disclosure of
documents covered by this exception.
Disclosure of the identified document relative to your second request
would undermine EBA’s Decision-Making Process
Further and in the alternative, disclosure would be contrary to the first
subparagraph of Article 4(3) of Regulation (EC) No 1049/2001 regarding
documents received by the EBA, which relates to a matter where the
decision has not been taken by the EBA s.
The EBA’s decision-making process would be seriously undermined if the EBA
discloses confidential information, which has not been assessed in the
context of deliberations and/or preliminary consultations. Disclosure
without first conducting a methodical assessment and an evaluation of the
information collected will jeopardise confidence in the financial system
due to providing a partial and incomplete view on this matter in the EU
financial sector. Such disclosure would seriously restrict the EBA from
effectively exercising its decision-making powers.
The EBA has not identified an overriding public interest in disclosure of
documents covered by this exception.
Means of redress
Finally, we would like to refer you to Article 7(2) of Regulation (EC) No
1049/2001, which provides that an applicant may within 15 working days of
receiving this initial reply make a confirmatory application asking the
EBA to reconsider its position. Such confirmatory application should be
addressed to [3][email address].
 
Kind regards,
 
EBA Legal and Compliance
 
 
 

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EBA Regular Use

Dear Mr Kattrup,

We hereby confirm receipt of your confirmatory application.

In accordance with Regulation (EC) No 1049/2001, your confirmatory application will be processed within 15 working days. This deadline expires on 20/02/2025.

If this deadline needs to be extended, we will inform you in due course.

Sincerely,

EBA Legal and Compliance

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EBA Regular Use

Dear Mr. Kattrup,

We acknowledged receipt of your confirmatory application, as confirmed in our acknowledgment sent on 31 January 2025 (please find attached). We will respond within the legal deadline, which expires on 20 February 2025.

Kind regards,
Legal and Compliance

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EBA Regular Use

Dear Mr Kattrup,

We are following up on your confirmatory application pursuant to 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 (Access to Documents Regulation).

After thoroughly reassessing your request and consulting with RepRisk as the third-party generating the identified documents within the scope of your requests, the EBA’s Executive Director has made the following decisions:

1. To disclose the document under your first request.

RepRisk has agreed to the disclosure of this document to the extent that the data disclosed have already been assessed, aggregated, and published by the EBA on page 15 and the chart on figure 6 of its Report. They have informed us that their Methodology (at the following link: https://www.reprisk.com/research-insight...) is relevant to understand this document and that in accordance with Article 16 of the Access to Documents Regulation, this disclosure is without prejudice to any copyright of RepRisk which may limit the right to reproduce, distribute, publish, or otherwise exploit the data by the applicant. In this regard, RepRisk has informed us that it is not waiving any portion of its rights in the data under copyright law.

As previously mentioned in our initial reply, no other documents have been identified in our possession under your first request.

2. To reject the disclosure of the document identified within the scope of your second request.

As emphasised in EBA’s initial response, there is only one document we identified in EBA’s possession under the scope of your second request. This is a spreadsheet created by and obtained from RepRisk based on a commercial contract, containing raw data and figures. This document cannot be disclosed for the reasons already mentioned in EBA’s initial reply and further explained as follows:

Exception under first indent of Article 4(2) of the Regulation (EC) No 1049/2001 - disclosure would undermine RepRisk’ commercial and proprietary interest. Additional to the need of protecting RepRisk intellectual property rights, disclosing this document would compromise their commercial interests. The expertise of the RepRisk in collecting and analysing unpublished data which are not a matter of common knowledge should be protected. If such data were to be used by competitors, this would allow them to unfairly benefit from the work of RepRisk. The identified document is part of RepRisk suite of products and services that may be used only based on the specific contractual conditions agreed with them.

Exceptions under:
- third indent of Article 4(2) – purpose of inspections, investigations and audits and
- first subparagraph of Article 4(3) - EBA’s Decision-Making Process
of Access to Documents Regulation.

In light of these exceptions, the prevailing public interest over the alleged public interest in accessing data regarding greenwashing at this moment includes:

- The public interest in ensuring that the EBA performs its tasks effectively and the public interest in protecting market participants. Specifically, disclosing the document at this stage would be contrary to our legal obligations to conduct a thorough analysis of the raw data, perform further checks and audits including on other sources, and identify potential problems and analyse their impact. No decision has been made by the EBA based on this data. Disclosure at this time would hinder the EBA’s ability to fully assess the relevance and sufficiency of the information. Additionally, it would prevent us from correcting any potential misinterpretations that the public and market participants might form.

- The public interest in the EBA honoring its contracts with private parties. In this case, we have a non-disclosure agreement (NDA) with RepRisk that prevents us from disclosing their information. Disclosing this information would not only harm the commercial relations between the EBA and RepRisk but also erode the public confidence in the EBA’s commitment to honoring its contractual obligations. This would undermine the EBA’s ability to effectively carry out its tasks and make decisions.

Means of redress:
Should you not be satisfied with this reply, you may consider making a complaint to the European Ombudsman or an appeal before the Board of Appeal, pursuant to Article 72(3) and Article 60 of the EBA founding Regulation (Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC).

Please note that RepRisk is willing to provide their contact details should you wish to contact them directly. Also, kindly inform us if you consent to the disclosure of your name to RepRisk.

Yours sincerely,
EBA Legal and Compliance

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