Guidelines concerning the use of modern communication tools such as text and instant messages
Alexander Fanta made this access to documents request to European Court of Auditors as part of a batch sent to 5 authorities Automatic anti-spam measures are in place for this older request. Please let us know if a further response is expected or if you are having trouble responding.
Hello,
under Regulation 1049/2001, I would like to request all documents held regarding a proposal by the Commission for new common guidelines concerning the use of modern communication tools such as text and instant messages. The Commission has sent out an initial note, registered as Ares(2022)6527884, as well as a scoping note, Ares(2023)1595460. I would like to request these documents, the reply or replies sent by your institution, as well as any other document held by your institution on this matter.
Yours faithfully,
Alexander Fanta
netzpolitik.org e.V.
Schönhauser Allee 6-7
10119 Berlin
Germany
Dear Mr Fanta,
Thank you for contacting the European Court of Auditors (ECA).
We acknowledge receipt of your message of 12 June 2023. Your request is
currently under treatment and we will provide you with a reply in due
course.
Kind regards
ECA-INFO team
ECA-INFO
Information Desk
12, rue Alcide De Gasperi - L-1615 Luxembourg
[1]eca.europa.eu
Please consider the environment before printing this email
Dear Mr Fanta,
Thank you for contacting the European Court of Auditors (ECA).
Your request has been treated according to the rules on public access to
ECA documents, which are set out in [1]Decision No 12/2005 of the Court
of Auditors regarding public access to Court documents (as amended by ECA
Decision No 14/2009, consolidated version published in OJ C 67/1 of
20.03.2009) (altogether, "the Court's Decision"). Please note that
Regulation 1049/2001 regarding public access to European Parliament,
Council and Commission documents is not applicable to our institution.
As regards the ECA documents that you request, we have identified the
reply of the ECA to the Commission’s invitation, Ares(2022)7985522, that
we are pleased to provide you here attached.
We would like to point out that this document contains personal data (e.g.
name, surname) of staff members of the ECA who were appointed to represent
the ECA at the interinstitutional meeting proposed by the Commission.
According to Article 4.1 (b) of Decision No 12-2005 of the Court of
Auditors (as amended), the ECA "shall refuse access to a document where
disclosure would undermine the protection of [ ... ] privacy and integrity
of the individual, in particular in accordance with Community legislation
regarding the protection of personal data". Pursuant to Article 9(1)(a)
and (b) of Regulation (EU) 2018/17252 (the relevant legislation as regards
protection of personal data), personal data shall only be transferred to
recipients established in the Union other than Union institutions and
bodies if:
"(a) the recipient establishes that the data are necessary for the
performance of a task carried out in the public interest or in the
exercise of official authority vested in the recipient; or
(b) the recipient establishes that it is necessary to have the data
transmitted for a specific purpose in the public interest and the
controller, where there is any reason to assume that the data subject's
legitimate interests might be prejudiced, establishes that it is
proportionate to transmit the personal data for that specific purpose
after having demonstrably weighed the various competing interests."
Furthermore, in line with settled case-law (see for example the
ClientEarth case, C-615/13 P, paragraph 47), it is for the requester to
establish the necessity of such a transfer. The EU institution does not
have to examine ex officio the existence of a need for transferring
personal data. Based on the information available from your request, we
understand that you are interested rather in the substance of the
documents you request and we note that the necessity of disclosing the
aforementioned personal data to you has not been established.
Therefore, we have expunged the attached file of the name and surname of
the ECA staff members indicated therein.
As regards the European Commission’s documents that you identify in your
request, we would like to inform you that, to the best of our knowledge,
the ECA did not receive the document from the Commission registered as
Ares(2022)6527884. In exchange, the ECA is in possession of the scoping
note, identified with the number Ares(2023)1595460, that you request in
your enquiry. Furthermore, the ECA is also in possession of the
invitation of the European Commission, identified with the number Ares
(2022) 7985544 of 18/11/2022 and of the draft summary record of the
interinstitutional meeting held on the matter, identified with the number
Ares (2022) 8894621 of 21/12/2022.
We would like to underline that these are documents of which the ECA is
not the author. Pursuant to Article 4.5 of its Decision no 12-2005, "if
the application concerns a document held by the Court but of which the
Court is not the author, the Court shall confirm receipt of the
application and supply the name of the person, institution or body to whom
the application must be addressed". Under this exception, we are not in a
position to share either with you the “scoping note” or the other two
Commission documents identified above. Similarly, based on the same
exception, the ECA could not have granted you access to the “initial
note”, even if were in its possession . You may consider addressing your
request to the European Commission , if you are interested to obtain those
documents (see their [2]webpage).
This notwithstanding, in application of Article 4.8 of the ECA’s Decision
on access to documents, the ECA may decide to allow access to a document
where there is an overriding public interest in its disclosure. We note
that, contrary to case-law* (applicable by analogy in this case), you have
not adduced any proof as to how disclosing the requested documents to you
would serve the public interest.
Please be informed that, under Article 7 of Decision 12/2005, you can ask
the ECA to reconsider its position within 15 working days of receiving
this reply. Your request for reconsideration should be submitted to the
President of the ECA.
Kind regards
ECA-INFO team
*“in so far as concerns the last clause of Article 4(2) of the regulation
[(EC) No 1049/2001], it is, by contrast, for the party alleging an
overriding public interest, within the meaning of that clause, to prove
that interest.” (Judgment of 25 September 2014, Spirlea/Commission
([3]T-669/11), paragraph 97)
ECA-INFO
Information Desk
12, rue Alcide De Gasperi - L-1615 Luxembourg
[4]eca.europa.eu
Please consider the environment before printing this email
Dear European Court of Auditors,
thank you for your timely reply. 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 'Guidelines concerning the use of modern communication tools such as text and instant messages'.
The Court of Auditors has stated in its reply from June 22 that it has identified three documents originating from the European Commission that it holds, but refuses to give access based on its own Decision no. 12-2005. I understand that this decision lays down exceptions not contained in Regulation 1049/2001, and not in line with its letter. In Article 2 (3.), the Regulation states that it applies to "all documents held by an institution", both documents drawn up and received by it. I therefore believe that, whatever the Court of Auditors has unilaterally decided in its decision, it should follow Regulation 1049/2001 and properly examine my request for access.
I also would like to argue for an overriding public interest in disclosure of the documents in question, as they concern a matter of policy that determines the implementation of Regulation 1049 and of Article 42 of the Fundamental Rights Charter. Withholding public scrutiny of the documents in question would not only be ironic, but also a disservice to the concept of openness enshrined in the treaty and the commitment to improving the transparency of decision-making.
Yours faithfully,
Alexander Fanta
Dear Mr Fanta,
We acknowledge receipt of your request for reconsideration that you sent
by e-mail on 23 June 2023. Your request is currently under treatment and
we will provide you with a reply in due course.
Kind regards
ECA-INFO team
ECA-INFO
Information Desk
12, rue Alcide De Gasperi - L-1615 Luxembourg
[1]eca.europa.eu
Please consider the environment before printing this email
Dear Mr Fanta,
Please find here attached the answer to your request.
Kind regards
ECA-INFO team
ECA-INFO
Information Desk
12, rue Alcide De Gasperi - L-1615 Luxembourg
[1]eca.europa.eu
Please consider the environment before printing this email