Dear European External Action Service,

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 or service 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 European External Action Service,

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'.

First, I would like to ask for a full list of the documents in question.

Second, I would like to contend that you have misapplied the exception in question. The Court of Justice of the EU has said that the risk of jeopardizing international relations must be reasonably foreseeable and not
purely hypothetical (see CJEU, 21 July 2011 Case C-506/08 P, Sweden v MyTravel and Commission) and that the institution must show that the document requested specifically and actually undermines the interest protected
by the exception (see CJEU, 28 November 2013, Case C-576/12 P, Ivan Jurasinovic v Council of the
European Union, paragraph 45.) You state that the "disclosure of this document[s] to the public would thus risk harming the possibility of maintaining an environment of mutual trust in coming diplomatic dialogues", but fail to specify how that would be the case. I contend that it is necessary to show that disclosure would undermine the public interest as regards international relations based on the content of the document or documents in question. The mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception (Case T‑2/03 Verein für Konsumenteninformation v Commission [2005] ECR II‑1121, paragraph 69). In principle, such an application can be justified only if the institution has previously determined, first, that access to the document was likely, specifically and actually, to undermine the protected interest.

I urge the Commission to consider at least a partial release of the document in redacted form. In this context I want to remind the Commission of settled case-law, according to which the exceptions to access to documents must be interpreted and applied strictly so as not to frustrate application of the general principle that the public should be given the widest possible access to documents held by the institutions (Case C‑64/05 P Sweden v Commission [2007] ECR I‑11389, paragraph 66, and Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco v Council [2008] ECR I‑4723, paragraph 36).

Yours faithfully,

Alexander Fanta
Schönhauser Allee 6-7
10119 Berlin
Germany