Dear access to documents team,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents mentioned in a recent reply to parliament by the Commission (E-000713/2022). The documents in question concern a possible blacklisting of Israeli manufacturer NSO Group and the spyware Pegasus. The reply by Commissioner Breton mentions that the Commission "has raised the issue with the export control authorities of the Member States and with Israel, with a view to mitigating the risks associated with trade in these sensitive products."

I want to request all exchanges with Member States as well as with Israel on the issue. My request is also meant to cover all internal communication within the Commission (such as e-mails, legal analysis) related to said exchanges.

The applicant notes that he has filed an identical request with DG Trade, which was transferred to DG Grow (GESTDEM 2022/3316). DG Grow has informed me in a reply dating from July 20, 2022 that it holds no document corresponding to that description. I therefore hope to identify the DG that does indeed hold the document or documents in question.

Yours faithfully,

Alexander Fanta
netzpolitik.org e.V.
Schönhauser Allee 6-7
10119 Berlin
Germany

Dear Trade,

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 'Exchanges on Pegasus'. I have not received a response for over 8 months.

Yours faithfully,

Alexander Fanta

Dear Trade,

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 'Exchanges on Pegasus'. I would like to challenge the non-disclosure of documents 2 and 3.

In regard to Article 4(1)(a), first indent, the General Court ruled in the Evropaïki Dynamiki case (T-167/10) in regard to a matter of public security that the Commission had to show how disclosure „could specifically and actually undermine that objective in a way that is reasonably foreseeable and not purely hypothetical“. In the Steinberg case (T-17/10), the General Court established that there was a concrete risk of disclosure as the documents might be used to exert pressure on the relevant persons, even to make threats to their physical or moral integrity. I would like to contend that in the present case, the Commission must examine whether the high standard of the exception is met, namely that disclosure would result into an actual threat.

In regard to Article 4(1)(a), third indent, according to settled case law, the institution must show that the document requested specifically and actually undermines the interest protected by the exception and it should not be treated as a categorical exception. The exception on international relations does not apply simply
because the subject matter of a document ‘concerns’ international relations. On the contrary, it is necessary to show that, based on the content of a document, its disclosure would undermine the public interest as regards international relations. The Commission argues in the present case "that disclosure would undermine the security of the EU and of Member States by revealing assessments related to sensitive items and linked risk", but I contend that this statement does not reach the threshold of actually demonstrating a harm to the EU's interest.

Further, I argue that based on the agenda of the meeting of the Working Party on Dual-Use Goods on October 25, 2021, the content of the withheld documents concerns "developments in other policy areas with relevance for dual-use export controls". Here in other materials made public, it has been indicated that the working group has discussed possible legislative action on the export and import of dual-use goods (whether or not these discussions have produced any impetus for further action is immaterial to this argument). In Article 2 (4.) of Regulation 1049/2001 it is clearly stated that documents drawn up or received in the course of a legislative procedure shall be made directly accessible - "to the greatest possible extent", as recital 6 specifies. I additionally want to point to the judgement in De Capitani v Parliament ( T‑540/15), in which the court states that 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".

I argue that in the present case, the documents in question address the fact of whether the Commission should legislate in the area of spyware, and indeed following discussions in the DUWP and STEG, the Commission has proposed the European Media Freedom Act, which addresses the issue of spyware and its use against journalists. Therefore the documents 2 and 3 should be considered part of the legislative process and disclosed in full.

Yours faithfully,

Alexander Fanta