Ref. Ares(2023)7303814 - 26/10/2023
EUROPEAN COMMISSION
LEGAL SERVICE
The Director-General
Brussels,
By e-mail
Mr Franck Schmidt
Robert-Blum-Strasse 22
66113 Saarbrücken
Germany
ask+request-13631-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Request for access to documents
Ref.:
Your request of 5 October registered under reference 2023/5847.
Dear Mr Schmidt,
I refer to your above-mentioned application for access to documents in accordance with
Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001
regarding public access to European Parliament, Council and Commission documents
1, by
which you request access to
“documents which contain [… ] Commission legal opinions on
draft directive on violence against women and domestic violence”.
1.
IDENTIFICATION OF DOCUMENTS
After examination of the Legal Service’s files, the following documents have been identified
as matching the terms of your request:
1. Note to the file of the Legal Service of 28 January 2022 concerning the draft proposal
for a Directive (reference Ares(2022)732920). This note was later sent to the European
Commission’s President’s Cabinet;
2. Note of the Legal Service of 18 February 2022 to the attention of Director-General of
Directorate-General for Justice and Consumers (DG JUST) (document reference
Ares(2022)287145);
3. Attached to document 2 is a draft version of the draft proposal for a Directive containing
the Legal Service’s comments in the form of track-changes.
1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding
public access to European Parliament, Council and Commission documents (OJ L 145, 31.05.2001, page 43).
European Commission, B-1049 Brussels / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11.
2.
ASSESSMENT OF THE DOCUMENTS
Having carefully examined the documents requested, I have come to the conclusion that they
must be refused since they are covered by the exceptions provided for in Article 4(2), second
indent (
“protection of legal advice”) and second subparagraph of Article 4(3) ("
protection of
the decision-making process") of Regulation (EC) No 1049/2001.
3.
FRAMEWORK AND REASONS FOR REFUSAL
On 8 March 2022 the European Commission adopted the proposal for a Directive on combating
violence against women and domestic violence (
“the draft proposal for a Directive”)
2. After
its adoption, the Commission’s proposal was sent to the European Parliament and to the Council
in view of its adoption under the ordinary legislative procedure, which is still at a very initial
stage of discussions
3.
Document 1 is a note to the file drafted by the Legal Service before the launching by DG JUST
of the inter service consultation (ISC) regarding the draft proposal for a Directive. This note
was intended for internal reflections within the Legal Service and with the Commission
President’s Cabinet and contains internal and preliminary considerations on the main issues
concerning the draft proposal.
Document 2 is the reply of the Legal Service to ISC launched by DG JUST on the draft proposal.
Document 3, attached to document 2, contains the draft proposal for a Directive with the Legal
Service’s comments in the form of
track-changes. Both documents contain a legal assessment
of different issues concerning the draft proposal and, in particular, the question of the choice of
the legal basis, the scope of the proposal, some specific sensitive questions regarding the draft
proposal and its relationship with the Istanbul Convention
4 and with the existing EU acquis
such as the Victims’ Rights directive
5, among others.
3.1. Protection of legal advice
Article 4(2), second indent, of Regulation (EC) No 1049/2001 states by way of exception that
"[t]he institutions shall refuse access to a document where disclosure would undermine the
protection of […] legal advice, unless there is an overriding public interest in disclosure".
I consider that disclosure of the documents requested would undermine the protection of legal
advice, which, as recognised by the Court of Justice, represents an exception that must be
construed as aiming to protect an institution's interest in seeking legal advice and receiving
frank, objective and comprehensive advice
6. Their disclosure would make known to the public
legal assessments of a preliminary nature intended for internal discussions within the Legal
Service and with the members of the European Commission President’s Cabinet as well as with
the Commission’s service responsible for the draft proposal at stake.
2 Proposal for a Directive of the European Parliament and of the Council on combating violence against women
and domestic violence - COM(2022)105 final.
3 https://eur-lex.europa.eu/legal-content/EN/HIS/?uri=CELEX:52022PC0105&qid=16508935
4 Council of Europe Convention on preventing and combating violence against women and domestic violence
(CETS No. 21).
5 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing
minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework
Decision 2001/220/JHA.
6 Judgment of the Court of Justice of 1 July 2008, Joined Cases C-39/05P and C-52/05P,
Kingdom of Sweden
and Maurizio Turco v Council of the European Union, ECLI:EU:C:2008:374, paragraph 42.
2
Indeed, this proposal is a major EU piece of legislation, highly sensitive both at political and
legal level, that aims to effectively combat violence against women and domestic
violence throughout the EU. It addresses very sensitive issues relating to criminal matters, some
of them very innovative such as the harmonisation of criminal offences and sanctions in the
area of cyber violence and establishes obligations on Member States to implement the directive
in the future.
In the light of the foregoing, I consider that disclosing the internal legal assessment contained
in the refused documents would clearly have, in a foreseeable manner, a serious impact on the
Commission’s interest in seeking and receiving legal advice and on the Legal Service’s capacity
to assist the Commission and its services in the assessment of highly sensitive matters. The
frankness, objectivity and comprehensiveness of the legal advice would be seriously affected if
legal advice on highly sensitive subjects, as in the present case, would be disclosed, depriving
thus the Commission of an essential element in its work.
Consequently, I consider that the documents requested are covered by the exception provided
for under Article 4(2), second indent, of Regulation (EC) No 1049/2001 (
“protection of legal
advice”) and cannot be disclosed at this point in time.
3.2 Protection of the decision-making process
In accordance with Article 4(3), second subparagraph, of Regulation (EC) No 1049/2001”
“a
ccess to a document containing opinions for internal use as part of deliberations and
preliminary consultations within the institution concerned shall be refused even after the
decision has been taken if disclosure of the document would seriously undermine the
institution's decision-making process, unless there is an overriding public interest in
disclosure”.
Although on 8 March 2022 the Commission adopted the proposal for a Directive on combating
violence against women and domestic violence, the discussions between the co-legislators for
its adoption are still in the stage of early trilogues. The legislative procedure at hand raises many
difficult and sensitive questions and the current discussions cover the issues raised in the three
documents concerned in particular as regards the questions of protection of victims and access
to justice. Thus, depending on the outcome of these negotiations, the Commission may indeed
have to adapt its position.
I therefore consider that disclosure to the public of the documents requested, at this point in
time, would negatively affect the institutions’ pending decision-making process as well as the
best outcome of the legislative process itself. In this regard, it must be noted that this legislative
initiative is among President von der Leyen priorities, as acknowledged in the Gender Equality
Strategy 2020-2025
7. Furthermore, putting in the public domain the assessment and
considerations of the Commission’s Legal Service, before the final adoption of the proposal for
a Directive, would severely affect the capacity of the Commission to take decisions after frank
and unbiased internal discussions free from external interferences, thus seriously affecting its
decision-making process. I consider that the likelihood of the interest in the protection of the
decision-making process being compromised is not hypothetical, but a real and concrete one.
7 Communication from the Commission to the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions. A Union of Equality: Gender Equality Strategy 2020-
2025 – COM(2020)152 final.
.
3
Consequently, I conclude that the documents requested need to be protected under the second
paragraph of Article 4(3) of Regulation (EC) No 1049/2001, and this until the final adoption of
the legislative act.
4.
POSSIBILITY OF GRANTING PARTIAL ACCESS
As laid down in Article 4(6) of Regulation (EC) No 1049/2001, I have considered the possibility
of granting partial access to the documents requested. However, after careful examination, I
have come to the conclusion that they are entirely covered by the exceptions invoked so that a
partial disclosure cannot presently be granted without harming the protected interests.
5.
OVERRIDING PUBLIC INTEREST
Pursuant to Article 4(2) and (3) of Regulation (EC) No 1049/2001, the exceptions to the right
of access must be waived if there is an overriding public interest in disclosing the requested
documents. In order for an overriding public interest in disclosure to exist, this interest, firstly,
has to be public and, secondly, overriding,
i.e. in this case, it must outweigh the interests
protected under Article 4(3), second subparagraph, of Regulation (EC) No 1049/2001. In the
present case, I see no elements capable of showing the existence of an overriding public interest
in disclosure of the documents requested that would outweigh the public interest in the
protection of legal advice as well as the institutions’ decision-making process.
6.
MEANS OF REDRESS
Should you wish this position to be reconsidered, you should present in writing, within fifteen
working days from receipt of this letter, a confirmatory application to the Secretariat-General
of the Commission at the following address:
European Commission
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1)
BERL 7/076
B-1049 Brussels
or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours sincerely,
[signed electronically]
Daniel CALLEJA CRESPO
Electronically signed on 26/10/2023 13:54 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121
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Document Outline
