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REPLY TO CONFIRMATORY APPLICATION No 11/c/02/24
made by email on 22 March 2024 and registered on the same day
Following this confirmatory application, the Council has considered the possibility to grant access
to the document requested thereby, in accordance with Regulation (EC) No 1049/2001 of the
European Parliament and of the Council of 30 May 2001
1 and Annex II to the Council’s Rules of
Procedure
2, and has come to the following conclusion:
1.
Further to the initial request for public access to document
WK 1475/24,
on 19 March 2024
the General Secretariat of the Council (GSC) refused to grant access to it, since its disclosure
would cause prejudice to the public interest as regards public security and international
relations (Art. 4(1)(a), first and third indent, of Regulation (EC) No. 1049/2001).
2.
On 22 March 2024, the Applicant submitted a confirmatory application asking the Council to
review its position, arguing in essence that it had not sufficiently justified why the disclosure
of the requested document would specifically and actually undermine the abovementioned
public interests.
3.
The Council has re-assessed, in full consideration of the principle of transparency underlying
Regulation (EC) No 1049/2001 and in the light of the Applicant’s comments, whether full or
partial public access can be provided to the requested document.
THE REQUESTED DOCUMENT
4.
Document
WK 1475/24 contains a presentation given by specialists from the University of
Antwerp at the meeting of the Horizontal Working Party on Enhancing Resilience and
Countering Hybrid Threats held on 29 January 2024, focused on “A framework to measure
and monitor countries’ resilience and vulnerability to foreign information manipulation and
interference (FIMI)”. The presentation describes the three pillars of the envisaged operational
framework: 1) Countries’ resilience to FIMI; 2) Foreign Actor Influence Activity;
3) Potentially Disruptive Information Events.
1
OJ L 145, 31.5.2001, p. 43.
2
Council Decision 2009/937/EU (OJ L 325, 11.12.2009, p. 35).
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5.
Addressing vulnerabilities to the FIMI is a key element of the implementation of the EU
Strategic Compass and strengthening cooperation among the EU and its Member States and
between the Union and its international partners in tackling such manipulations and
interferences is of primary importance.
6. From the outset, it should be underlined that document
WK 1475/24 has not been issued in
the context of the Council’s legislative activity. Indeed, the requested document relates to the
Union’s international relations, an area which, under Regulation (EC) No 1049/2001, does not
require as extensive an access to documents as that concerning the legislative activity of a
Union institution. It is against this background that the present request ought to be examined.
ASSESSMENT OF THE REQUESTED DOCUMENT UNDER REGULATION (EC)
No 1049/2001
7.
The Council recalls that, in accordance with the established case-law of the Court of Justice,
the public interest exceptions laid down in Article 4(1)(a) of Regulation (EC) No 1049/2001
are subject to a particular regime as compared to the other exceptions included in Article 4.
8.
On the one hand, “
in respect of the public interest exceptions provided for in Article 4(1)(a)”
of Regulation (EC) No 1049/2001, the Council must be recognised as “
enjoying a wide
discretion for the purpose of determining whether disclosure of a document to the public
would undermine the interests protected by that provision”.
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9.
On the other hand, once the Council has come to the conclusion that release would indeed
undermine the public interest in this area, it has no choice but to refuse access, because “
it is
clear from the wording of Article 4(1)(a) of Regulation No 1049/2001 that, as regards the
exceptions to the right of access provided for by that provision, refusal of access by the
institution is mandatory where disclosure of a document to the public would undermine the
interests which that provision protects, without the need, in such a case and in contrast to the
provisions, in particular, of Article 4(2), to balance the requirements connected to the
protection of those interests against those which stem from other interests”.
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3
Judgments of 11 July 2018,
ClientEarth v Commission, T-644/16, paragraph 25, and of 27 November 2019,
Izuzquiza and
Semsrott v European Border and Coast Guard Agency (FRONTEX), T-31/18, paragraph 65.
4
Judgment of 1 February 2007,
Sison v Council, C-266/05, paragraph 46; and similarly judgment of 7 February 2018,
Access
Info Europe v Commission, T-851/16, paragraph 38.
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10. Therefore, while the Council enjoys a wide discretion in assessing the impact of the release of
documents on public security and/or international relations, it is barred from taking into
account other legitimate interests that might override the conclusion that giving access to a
document or parts of a document would harm the abovementioned protected interest.
11. Besides, for the purpose of the assessment of a request for access to documents under
Regulation (EC) No 1049/2001, it is not required to establish the existence of a definite risk of
undermining the protection of the European Union’s international relations, but rather the
existence of a reasonably foreseeable and not purely hypothetical risk
5 for which, as
previously recalled, the institution enjoys a margin of discretion.
12. It also results from the above that the Council has no choice but to refuse access to a
document that falls within the scope of the abovementioned exceptions, the public disclosure
of which would undermine the public interests protected by them.
13. Document
WK 1475/24 outlines the FIMI framework and sets out information of multilevel
nature (including focus on data sources and data management, on the political environment
and on the complexity of the resilience framework) and focuses on threats in this regard in the
West Africa region. In this context, the requested document, elaborated by academia experts,
contains specific information on a case study and provides key figures on specific resilience
capacities in a number of third countries, including also a related comparative dashboard.
14. Document
WK 1475/24 aims at facilitating a coordinated approach by the EU institutions and
bodies and Member States authorities to further enhance the EU’s comprehensive approach to
FIMI and disinformation at theoretical, strategic and technical level. The information therein
contained which is, by its very nature, reserved for sensitive strategic analyses and external
action with a view to the necessary diplomatic and informal exchanges with third countries
and within international fora.
15. Considering the sensitive nature of the subject matter of the document, the Council submits
that its full disclosure would allow third parties to gain knowledge of the EU’s multi-
dimensional approach in tackling FIMI risks, conceptually and operationally. This would
create a reasonably foreseeable risk of undermining the Union’s international relations in the
sense of Article 4(1)(a) third indent of Regulation (EC) No 1049/2001. More specifically, full
release of document
WK 1475/24 to the public would undermine the EU’s and its Member
5
Judgment of 25 November 2020,
Bronckers v Commission, T-166/19, paragraph 60.
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States’ global efforts to shape and influence their strategies to counter FIMI and
disinformation, hampering their global efforts to counter destabilising actions in areas
affected by geopolitical turbulences.
16. On this point, it should be recalled that the Court has accepted that access to the content of a
document may be refused on the basis of the protection of international relations if the
disclosure would be liable to reveal the Union’s strategic objectives, thereby causing
prejudice to the public interest as regards international relations.
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17. Furthermore, full disclosure of document
WK 1475/24, which includes specific references to
third countries, could also have the effect of altering the quality of the Union’s relations with
the national authorities of some of these countries. On this point, it is worth recalling that the
General Court has held that: “
the way in which the authorities of a third country perceived the
decisions of the European Union was a component of the international relations established
with that third country.
Indeed, the pursuit and the quality of those relations depend on that
perception”.
7 In other words, by disclosing the content of the requested document which was
meant for an internal audience, the Union could alter the perception of those third States and,
in turn, undermine the Union’s international relations with such States.
18. For these reasons, the Council submits that the full disclosure of the content of the document
WK 1475/24 would specifically and actually undermine the Member States’ as well as the
Union’s diplomatic actions against FIMI and disinformation.
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19. Nevertheless, following new consultations, the Council considers that, in line with Article
4(6) of Regulation (EC) No 1049/2001, the Applicant may have access to those parts of the
document (namely, the cover page and slides 1 to 3, 5 to 9 and 13 to 16 that provide general
information on the overarching FIMI resilience framework (pillar 1 - resilience indexes,
theoretical and methodological details) that is no longer covered by any exception to
disclosure.
20. Moreover, slide 1 of the presentation contains the identity of the three authors of that
presentation, which constitutes personal data necessary for the organisation of the work of the
6
Judgment of the Court in case C-350/12P of 3 July 2014
Council v Sophie in ‘t Veld, paragraph 109.
7
Judgment General Court in case T-166/19 of 25 November 2020,
Bronckers v European Commission, paragraph 61.
8
Article 4(1)(a), third indent of Regulation (EC) No 1049/2001.
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Council. The data protection rules at EU level
9 provide that, when the personal data collected
is to be used for a different purpose, including disclosure to the public, a balance needs to be
established between the public interest in having access to such data and the legitimate right
of individuals to protect their personal data.
After carefully considering all the principles related to this request, on balance the Council
considers that disclosure of the identity of the authors of the presentation contained in the
requested document would undermine the protection of privacy and the integrity of the
identified individuals.
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CONCLUSION
21.
For the reasons set out above, the Council concludes that access should be granted to those
parts of document
WK 1475/24 referred to in paragraphs 18, 19 and 20 above, whilst the
remaining parts of the document
must be refused on the ground of Article 4(1)(a), third
indent and Article 4(1)(b) of Regulation (EC) No 1049/2001.
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9
Regulation (EU) No 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of
natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on
the free movement of such data (OJ L 295 21.11.2018, p. 39).
10
Article 4(1)(b) of Regulation (EC) No 1049/2001.
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