Exchanges with member states on Pegasus
Alexander Fanta made this access to documents request to Justice and Consumers This request has been closed to new correspondence. Contact us if you think it should be reopened.
Dear Justice and Consumers,
Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:
In reply to parliament E-001677/2022, Commissioner Reynders states that the "Commission is also in contact with Hungary, Poland and Spain about the use of Pegasus and continues to gather information in this regard". I would like to request all communications (e-mail, letters, text messages, etc.) between the Commission and said member states on Pegasus.
Yours faithfully,
Alexander Fanta
netzpolitik.org e.V.
Schönhauser Allee 6-7
10119 Berlin
Germany
Link: [1]File-List
Link: [2]themeData
Link: [3]colorSchemeMapping
[4]RE: access to documents request - Exchanges with member states on
Pegasus - GESTDEM 2022/4664 - AoR - Ares(2022)5778368 (Please use this
link only if you are an Ares user – Svp, utilisez ce lien exclusivement si
vous êtes un(e) utilisateur d’Ares)
Dear Sir,
Thank you for your e-mail of 17 August 2022. We hereby acknowledge receipt
of your application for access to documents, which was registered on 17
August 2022 under reference number GESTDEM 2022/4664.
In accordance with Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents, your application
will be handled within 15 working days. The time limit will expire on 7
September 2022. In case this time limit needs to be extended, you will be
informed in due course.
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Yours faithfully,
JUST Access to Documents Team
Daer Sir,
Please find our reply to your application for access to documents – Ref
GestDem No 2022/4664 attached.
With kind regards,
[1]Just Logo
European Commission
DG Justice and Consumers
Unit JUST/C3 - Data Protection
1049 Brussels/Belgium
References
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Dear Justice and Consumers,
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 with member states on Pegasus'.
Regarding your refusal to provide access under Article 4(2) for the protection of inspections and audits, the European Ombudsman has found in several rulings that the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical. Furthermore, institutions need to prove, for each individual document, that disclosure would undermine the investigation (see European Ombudsman cases: 3699/2006/ELB 06 April 2010; 725/2014/FOR 01 October 2015; 248/2016/PB 31 October 2016). Likewise the Court, in Franchet and Byk (T-391/03 and T-70/04), stated that this exception only applies if disclosure of the documents in question endangers the completion of the investigation. I contend that this is not the case.
While I note that the Commission claims granting access to the documents would "affect the climate of
mutual trust between the authorities of the concerned Member States and the Commission and would risk to prematurely alter the nature of the assessment", the Commission has not provided sufficient reasoning to explain why, specifically, disclosure would affect mutual trust. I argue that, in fact, relations between the Commission, Poland and Hungary are already strained and any disclosure regarding information on Pegasus can hardly have further negative effects.
Conversely, I would like to argue an overriding public interest in disclosure. I note that the matter of the Pegasus spyware and its use in various European Union member states is a matter of considerable scrutiny by the media, member state institutions and co-legislators. Indeed, the European Parliament has set up a committee specifically to investigate the use and misuse of said spyware. The hearings are public to advance the understanding of current practices regarding spyware and probe the need for new legislative action to prevent misuse. I would argue that the attack against a member of the European Commission and dealings of the European Commission in regard to Pegasus constitute a matter which could provide crucial insight into the subject investigated by the co-legislative institution. Indeed, I would like to argue that non-disclosure would obstruct any attempt to gain a full picture of the potential misuse of Pegasus and other spyware, therefore constituting a clear harm to public interest. In this regard, I would like to point out the Pari Pharma case (T-235/15), where the court found that specific, „succinct“ circumstances may merit disclosure. I argue that this threshold is met in this case.
Yours faithfully,
Alexander Fanta
Dear Mr. Fanta,
Could I please ask you to send your confirmatory application directly to the Secretary-General of the Commission by email to: [email address]?
Please do not forget to mention the GESTDEM registration number of your file.
Best regards,
JUST ACCESS TO DOCUMENTS
Dear Mr. Fanta,
I'll gladly pass it on to our colleagues from the Secretariat General as soon as you give me the GestDem registration number of your request.
Many thanks,
JUST ACCESS TO DOCUMENTS
Dear Mr. Fanta,
Thank you. I've just forwarded your confirmatory application to the Secretariat General.
Best regards,
JUST ACCESS TO DOCUMENTS
Dear Mr Fanta,
We refer to your email of 22 September 2022, registered on the same day,
by which you submit a confirmatory application in accordance with Article
7(2) of Regulation (EC) No 1049/2001 regarding public access to European
Parliament, Council and Commission documents ("Regulation (EC) No
1049/2001"), registered under reference number above.
Your confirmatory application is currently being handled. Unfortunately,
we have not yet been able to gather all the elements needed to carry out a
full analysis of your request and to take a final decision. Therefore, we
are not in a position to reply to your confirmatory request within the
prescribed time limit which expires on 13 October 2022. Consequently, we
have to extend this period by another 15 working days in accordance with
Article 8(2) of Regulation (EC) No 1049/2001. The new deadline expires on
7 November 2022. However, we can assure you that we are doing our utmost
to provide you with a final reply within the next 15 working days.
We regret this additional delay and apologise for any inconvenience this
may cause.
Yours sincerely,
Access to Documents Team
European Commission
Secretariat General
Unit C.1 (Transparency, Document Management and Access to Documents)
Dear Mr Fanta,
We refer to your email of 22 September 2022, registered on the same day
under the reference number above, by which you submit a confirmatory
application in accordance with Article 7(2) of Regulation (EC) No
1049/2001 regarding public access to European Parliament, Council and
Commission documents ("Regulation (EC) No 1049/2001").
We also refer to our holding reply of 12 October 2022, by which the time
limit for replying to your confirmatory application was extended by 15
working days, pursuant to Article 8(2) of Regulation (EC) No 1049/2001.
This extended time limit expires on 7 November 2022.
We regret to have to inform you that we are not able to respond within the
extended time limit, as we have not yet finalised internal consultations.
We can assure you that we are doing our utmost to provide you with a final
reply as soon as possible. We regret this additional delay and apologise
for any inconvenience this may cause.
Yours sincerely,
Access to Documents Team
European Commission
Secretariat General
Unit C.1 (Transparency, Document Management and Access to Documents)
Dear Mr Alexander Fanta,
Please find attached the electronic version of the Commission Decision
C(2022)9561 as adopted by the European Commission on 12.12.2022.
The formal notification of the decision under Article 297 TFEU is being
made only in electronic form.
Could you please confirm receipt of the attached document by return
e-mail?
Many thanks in advance.
Kind regards,
Dimitra PROTOPSALTI
SG.B2 Procédures écrites, habilitation, délégation
European Commission
Secretariat-General
BERL 005/155
B-1049 Brussels, Belgium
Tél: (+32) 2 29 56750
Dear Mr Alexander Fanta,
Unless we are mistaken, and while checking our records, we have not
received your confirmation of receipt regarding the message below.
Could you please acknowledge the receipt of the document enclosed in the
message addressed to you, by return email?
Kind regards,
Dimitra PROTOPSALTI
SG.B2 Procédures écrites, habilitation, délégation
European Commission
Secretariat-General
BERL 005/155
B-1049 Brussels, Belgium
Tél: (+32) 2 29 56750
From: SG GREFFE CERTIFICATION <[email address]>
Sent: Tuesday, December 13, 2022 2:53 PM
To: [FOI #11738 email]
Cc: BEVIERE Chantal (SG) <[email address]>
Subject: C(2022)9561 - netzpolitik.org e.V. - Alexander Fanta
Dear Mr Alexander Fanta,
Please find attached the electronic version of the Commission Decision
C(2022)9561 as adopted by the European Commission on 12.12.2022.
The formal notification of the decision under Article 297 TFEU is being
made only in electronic form.
Could you please confirm receipt of the attached document by return
e-mail?
Many thanks in advance.
Kind regards,
Dimitra PROTOPSALTI
SG.B2 Procédures écrites, habilitation, délégation
European Commission
Secretariat-General
BERL 005/155
B-1049 Brussels, Belgium
Tél: (+32) 2 29 56750