Mapping exercise on legal framework governing the use of spyware
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:
- The letters sent by the European Commission to member states on December 2021 requesting information about the national legal framework governing the use of spyware from a data protection perspective
- The replies received from the member states
Yours faithfully,
Alexander Fanta
netzpolitik.org e.V.
Schönhauser Allee 6-7
10119 Berlin
Germany
Dear Sir or Madam,
We hereby acknowledge the receipt of your request for access to documents
sent on 31/03/2023 and registered on 31/03/2023 under the case number
2023/2014.
We will handle your request within 15 working days as of the date of
registration. The time-limit expires on 26/04/2023. We will let you know
if we need to extend this time limit for additional 15 working days.
To find more information on how we process your personal data, please see
[1]the privacy statement.
Yours faithfully,
Directorate-General for Justice and Consumers - Access to Documents
European Commission
References
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1. https://ec.europa.eu/info/principles-and...
Dear Sir,
Please find attached a message concerning your request for access to
Commission documents registered under the above case number 2023/2014.
Please acknowledge the receipt of this message by return email.
Kind regards,
European Commission
DG Justice and Consumers
Unit JUST/C3 - Data Protection
1049 Brussels/Belgium
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 'Mapping exercise on legal framework governing the use of spyware'.
With regard to ongoing investigations, the European Ombudsman has stressed the fact 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 and provide clear reasoning on the motives for non-disclosure (European Ombudsman Case: 2004/2013/PMC 05). Likewise the General Court found in Franchet and Byk v Commission that the third indent of Article 4(2) of Regulation No 1049/2001 must be interpreted in such a way that this provision applies only if disclosure may endanger the completion of the investigation, inspection or audit.
The decision on my request by DG JUST on May 2, 2023 provided only a summary reason for non-disclosure for all documents, in a most general manner. I contend that the Commission must show how, exactly, disclosure would undermine the investigation in a reasonably foreseeable and not purely hypothetical for every single document. I also argue that member states are well aware of Regulation 1049/2001 and of Fundamental Rights Charter Article 42, therefore the possibility of disclosure should hardly come a surprise. Furthermore, an overview on the legal situation and a list of authorities which may use spyware is hardly information which, once disclosed, can be seen as a breach of trust or which would risk to prematurely alter the nature of the assessment.
I further contend that there is an overriding public interest in disclosure of the documents. Allegations of spyware misuse by member states are currently under investigation by the European Parliament in the PEGA committee, which is set to conclude this year. Withholding information on follow-up actions by the European Commission in regards to legal situation as well as potential use and misuse of spyware is therefore of clear damage to the public interest, as it obstructs the proper work of the PEGA Committee and its tentative conclusions.
Yours faithfully,
Alexander Fanta
Dear Sir or Madam,
We hereby acknowledge the receipt of your confirmatory request for case
2023/2014, sent on 02/05/2023 and registered on 02/05/2023.
We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 25/05/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.
Yours faithfully,
Secretariat-General - Access to Documents
European Commission
Dear Sir or Madam,
We hereby acknowledge the receipt of your confirmatory request for case
2023/2014, sent on 02/05/2023 and registered on 02/05/2023.
We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 25/05/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.
Yours faithfully,
Secretariat-General - Access to Documents
European Commission
Dear Mr Fanta,
We refer to your email, registered on 2 May 2023, by which you submit a
request for access to documents under 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 application is currently being handled. Unfortunately, we have not
yet been able to finalize the internal consultations 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 requestwithin the prescribed
time limit which expires on 25 May 2023. Consequently, we have to extend
this period by another 15 working days in accordance with Article 7(2) of
Regulation (EC) No1049/2001.
The new deadline expires on 16 June 2023.We regret this additional delay
and sincerely apologise for any inconvenience this may cause.
However, we can assure you that we are doing our utmost to provide you
with a final reply as soon as possible.
Yours sincerely,
SG.C1 ACCESS TO DOCUMENTS TEAM
Dear Mr. Alexander Fanta,
Please find attached the electronic version of Commission Decision C(2023)
6181 as adopted by the European Commission on 10.09.2023.
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,
Eduard GRIGORAȘ
European Commission
General Secretariat of the Commission – SG – B-2
Written, Empowerment and Delegation procedures
BERL 05 / P071
B-1049 Brussels / Belgium
Desk: +32 2 29 87 893
Mobile: +32 485 178 302
[1][email address]
References
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1. mailto:[email address]
Dear Mr. Alexander Fanta,
Unless we are mistaken, and after checking our records, we have not
received your confirmation regarding the message below.
Could you please check and confirm the receipt of the message as well as
the attached documents?
Many thanks in advance for your help.
Kind regards,
Eduard GRIGORAȘ
European Commission
General Secretariat of the Commission – SG – B-2
Written, Empowerment and Delegation procedures
BERL 05 / P071
B-1049 Brussels / Belgium
Desk: +32 2 29 87 893
Mobile: +32 485 178 302
[1][email address]
From: SG GREFFE CERTIFICATION <[email address]>
Sent: Monday, September 11, 2023 12:09 PM
To: [FOI #12808 email]
Cc: SG GREFFE CERTIFICATION <[email address]>;
GRIGORAS Eduard (SG) <[email address]>
Subject: C(2023) 6181 - Alexander Fanta - Netzpolitik.org e.V.
Dear Mr. Alexander Fanta,
Please find attached the electronic version of Commission Decision C(2023)
6181 as adopted by the European Commission on 10.09.2023.
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,
Eduard GRIGORAȘ
European Commission
General Secretariat of the Commission – SG – B-2
Written, Empowerment and Delegation procedures
BERL 05 / P071
B-1049 Brussels / Belgium
Desk: +32 2 29 87 893
Mobile: +32 485 178 302
[2][email address]
References
Visible links
1. mailto:[email address]
2. mailto:[email address]
Dear Commission,
thank you for your work on this, I received the response.
Yours sincerely,
Alexander Fanta