Ref. Ares(2023)7291885 - 26/10/2023
EUROPEAN EXTERNAL ACTION SERVICE
DG Resource Management
The Acting Director-General
Brussels, 26 October 2023
eeas.sg.ld(2023)10623797
Mr Alexander Fanta
by electronic mail
Subject:
Your confirmatory application for access to documents
Ref:
129/2023
Dear Mr Fanta,
I would like to thank you for your e-mail of 6 October 2023, in which you make a confirmatory
application, in accordance with Article 7(2) of Regulation (EC) No 1049/2001 regarding public
access to documents.1
As requested, I have examined the decision of 6 October 2023 of the EEAS Access to
Documents Coordinator, taken after the assessment of the division holding the document, not
to grant you access to the document identified as falling within the scope of your request:
- Letter addressed by the HR/VP Borrell to Commissioner Várhelyi dated 7 September 2023
(hereafter “the document”).
After carefully assessing the arguments put forward in your confirmatory application, I regret to
inform you that they did not lead me to reverse the position taken in the initial reply to your
request.
Indeed, as our services explained in the initial reply, any disclosure of this document - as a
whole or partially - would undermine the protection of the public interest as regards international
relations, as per Article 4(1)(a), third indent of the Regulation, as well as the institution decision-
making process as per Article 4(3), first sub-paragraph of the Regulation.
This decision was taken after a thorough analysis of the content of the document. The analysis
showed that the document contains information on concluded Memoranda of Understanding
(MoUs), as well as future ones that the EU is in the process of considering to negotiate and
conclude with countries in the EU neighbourhood. Disclosing this information to the general
public would expose the intentions of the EU towards its international partners, as well as its
own preliminary internal assessments. As a consequence, the public release of the requested
1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European
Parliament, Council and Commission documents (OJ L 145, of 31.5.2001, p. 43, hereafter the "Regulation "), as
applied by the EEAS pursuant to Article 11(1) of the Council Decision 2010/427/EU of 26 July 2010 establishing the
organisation and functioning of the European External Action Service (OJ L 201, of 3.8.2010, p. 30).
Service Européen pour l'Action Extérieure, B-1049 Bruxelles / Europese dienst voor extern optreden, B-1049 Brussel - Belgium.
Telephone: (32-2) 584 11 11.
document would weaken the negotiating position of the EU on these matters and would
negatively affect its relations with the non-EU countries concerned, as it would undermine the
climate of mutual trust in the context of upcoming negotiations. In the case at hand, I consider
this risk as reasonably foreseeable and non-hypothetical.2
Although I share your view regarding the importance of transparency, the protection of the public
interest as regards the EU international relations of the EU must also be preserved. In particular,
I would like to recall that the public interest exceptions laid down in Article 4(1)(a) of the
Regulation are subject to a particular regime as compared to the other exceptions included in
Article 4.
On the one hand, the Institution “must be recognised as enjoying a wide discretion for the
purpose of determining whether the disclosure of documents relating to the fields covered by
those exceptions relating to the public interest provided for in Article 4(1)(a) of the Regulation
could undermine the public interest.”3
On the other hand, once the Institution 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 the Regulation 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.”4
Therefore, while the EEAS enjoys a wide discretion in assessing the impact of the release of
this document since the exceptions in Article 4(1)(a) of the Regulation, protecting a public
interest such as the EU international relations
, fall under the category of absolute exceptions,
the EEAS is barred from balancing these exceptions against an overriding public interests in
disclosure.5
Even if the applicability of Article 4(1)(a) third indent of the Regulation suffices to refuse to grant
access to the requested document and excludes
per se the need to balance the decision of the
institution with a possible overriding public interest in disclosure as mentioned above, I have
assessed, in addition and for the sake of completeness, the applicability of the exception as per
Article 4(3) of the Regulation.
In that regard, anticipating a matter where a preliminary assessment is ongoing, as well as
putting in the public domain the views of the High Representative / Vice-President of the
Commission about applicable procedures within the EU Institutions for the negotiation and
conclusion of MoUs expressed internally towards another member of the College of
Commissioners, would have as a consequence to undermine both the decision-making process
on the conclusion of those instruments, and the prerogative of members of the College to freely
communicate between themselves through letters, notes or messages, on matters which are
subject to their joint decision-making.
Therefore, notwithstanding the applicability of Article 4(1)(a) of the Regulation, the disclosure of
the requested document would cause serious harm to the relevant decision-making procedure,
as College members would become more wary of sharing their views openly if they knew that
2 See Judgement of 25 November 2020, Marco Bronckers v Commission, T-166/19, EU:T:2020:557, paragraph 60.
3 Judgments of 1 February 2007, Sison v Council, C-266/05 P, EU:C:2007:75, paragraph 34; of 12 September 2013,
Besselink v Council, T-331/11, EU:T:2013:419, paragraph 32; and of 3 October 2012, Jurašinović v Council, T-
63/10, EU:T:2012:516, paragraph 32.
4 Judgments of 7 February 2018, Access Info Europe v Commission, T-851/16, EU:T:2018:69, paragraph 40, and
Access Info Europe v Commission, T-852/16, EU:T:2018:71, paragraph 40 and the case-law cited
5 See Judgment of 7 February 2018, Access Info Europe v Commission, T-851/16, EU:T:2018:69, paragraph 38 and
cited case-law
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their preliminary opinions on such sensitive matters would be released to the public. As
confirmed by the General Court, ‘the possibility of expressing views independently within an
institution helps to encourage internal discussions with a view to improving the functioning of
that institution and contributing to the smooth running of the decision-making process’.6 You
refer, in your confirmatory application, to the case law of the CJEU concerning EU citizens’ right
to access to documents forming part of the legislative process. In this regard, I would like to
point out that in the present case the decision-making process does not relate to the adoption
of a legislative act, but to internal consultations between members of the College and to their
freedom to express preliminary assessments on sensitive matters. Indeed, as recognised by
the case-law, the decision-making process also encompasses the administrative activity of an
institution,7 such as the preliminary assessments within the College of Commissioners in
question.
Hence, the disclosure of this letter would reveal internal opinions on questions on which no final
decisions have been taken by the European Union. This could potentially cause confusion to
the public, by placing in the public domain preliminary statements that do not necessarily reflect
the final position of the Union. Consequently, I consider that the document requested is also
protected under Article 4(3), first subparagraph, of the Regulation and I confirm the opinion
expressed in the initial reply to your application that there is no overriding public interest in
disclosing the requested document relating to procedural issues within the College.
Finally, I wish to recall that the fact that a document originating or held by the institution might
have been leaked and it might be or it might have been in the public domain in its leaked form
does not constitute a ground on the basis of which the institution would reverse its assessment
on the basis of the Regulation. Indeed, as confirmed by the case-law, a document is not put into
the public domain by its unauthorised disclosure.8
For all these reasons, I hereby confirm that the above-mentioned document cannot be released
to the public, neither fully nor partially. Indeed, I considered the possibility of a partial access, in
accordance with Article 4(6) of the Regulation. However, since the vast majority of the
substantive part of the document is covered by the invoked exceptions, granting a partial
access, albeit marginal, to the remaining part would entail revealing information the protection
of which is covered by the exceptions relied on, relating to the protection of the public interests
as regards international relations and the institution decision-making process.9
You have the right, in accordance with Article 8 of the Regulation, to institute court proceedings
against the European External Action Service before the Court of Justice of the European Union
and/or make a complaint to the Ombudsman, under the conditions laid down in Articles 263 and
228 of the Treaty on the Functioning of the EU respectively.
Yours sincerely,
[e-signed]
Kristin de Peyron
6 Judgment of 15 September 2016,
Phillip Morris v Commission, T-18/15, EU:T:2016:487, paragraph 87.
7 Judgment 13 July 2017,
Saint Gobain Glass v Commission, C-60/15 P, EU:C:2017:540, paragraph 85.
8 See Judgments of 26 May 2016, IMG v Commission, T-110/15, EU:T:2016:322, paragraph 59, of 25 October
2013, Beninca v Commission, T-561/12, EU:T:2013:558, paragraph 55, and of 6 October 2021, Aeris Invest v BCE,
T-827/17, EU:T:2021:660, paragraphs 218 and 219.
9 See Judgment of 7 February 2018, Access Info Europe v Commission, T-851/16, EU:T:2018:69, paragraphs 122
and 123.
Electronically signed on 25/10/2023 16:21 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121
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