Ref. Ares(2022)8884739 - 21/12/2022
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR COMMUNICATIONS NETWORKS, CONTENT AND
TECHNOLOGY
The Director-General
Brussels, 21st December 2022
CNECT.R.4
Tomas Rudl
netzpolitik.org e.V.
Schönhauser Allee 6-7
10119 Berlin
Germany
Via email: ask+request-11966-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your request for access to documents –EASE 2022/5806
Dear Mr Rudl,
We refer to your email of 11 October 2022 wherein you make a request for access to
documents pursuant to 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 (hereinafter ‘Regulation (CE) No 1049/2001’), which was
registered on 12 October 2022 under the reference number indicated in the subject of this
letter.
1. SCOPE OF YOUR APPLICATION
Your request reads as follows:
“(..)All documentation (including but not limited to all email correspondence,
attendance lists, agendas, background papers, transcripts, recordings and
minutes/notes) relating to the meeting between Filomena Chirico, Valere
Moutarlier and Orange on 05. 11. 2021.(..)”.
2. DOCUMENTS FALLING WITHIN THE SCOPE OF THE REQUEST
The following documents have been identified as falling within the scope of your
request:
- Email exchanges, 27 August 2021 to 7 October 2021, ARES(2022)8294156,
(“Document 1”)
- Briefing, Basis 1151, CAB Breton, Meeting with Orange - Digital Decade,
(“Document 2”)
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx
- Back to office report: meeting 05/11/2021 between CAB Breton and Orange,
ARES(2021)7526164,
(“Document 3”)
- Email, 27 August 2021, ARES(2021)5338132,
(“Document 4”)
- Letter, 26 August 2021, ARES(2021)5318166,
(“Document 5”)
3. ASSESSMENT UNDER REGULATION 1049/2001
Following an examination of the identified documents under the provisions of Regulation
1049/2001 and taking into account the opinion of the third party, we have arrived at the
conclusion that partial access can be granted to Documents 1-4, whilst access is denied
for Document 5. Full disclosure of the documents is prevented by exceptions to the right
of access laid down in Article 4 of Regulation 1049/2001. Furthermore, a part of
Document 4 has been blanked out as falling out of the scope of the request.
A. Partial Disclosure
(i) Protection of the decision-making process
The first subparagraph of Article 4(3) of Regulation 1049/2001 provides that ‘
[a]ccess to
a document, drawn up by an institution for internal use or received by an institution,
which relates to a matter where the decision has not been taken by the institution, shall
be refused if disclosure of the document would seriously undermine the institution’s
decision-making process, unless there is an overriding public interest in disclosure.’ Document 2 is a briefing that was drawn up by the Commission for internal use and parts of
it contain preliminary views and reflections of the Commission services on the Regulation on
Privacy and Electronic Communications, on the European Alliance for Industrial Data, Edge
and Cloud and on information concerning weighted average cost of capital (WACC) values.
The abovementioned parts are subject to ongoing discussions and deliberations.
The Commission services must be free to explore all possible options in relation to the
ongoing policy files indicated above. The risk of disclosing sensitive information regarding
the Commission services’ preliminary views during the ongoing decision-making processes
at hand would deter them from freely expressing their opinions and having frank, internal
discussions. Speculations and misinterpretations of the public on the views and reflections
put forward in the ongoing decision-making processes would affect the exploration of
different policy options and unduly restrict the Commission’s internal space to think,
exposing the Commission to external pressure during ongoing deliberations and negotiations.
Thus, at this stage the risk of disclosure of these preliminary views and reflections would
seriously undermine the ongoing decision-making processes. This risk is also reasonably
foreseeable and not purely hypothetical. In light of the foregoing, we consider that
pursuant to Article 4(3) first subparagraph of the Regulation 1049/2001, access cannot be
granted to the abovementioned parts of Document 2.
Consequently, the above-mentioned parts of Document 2 have been blanked out.
(ii) Protection of commercial interests
The first indent of Article 4(2) of Regulation 1049/2001 provides that
“the institutions
shall refuse access to a document where disclosure would undermine the protection of
commercial interests of a natural or legal person, including intellectual property, unless
there is an overriding public interest in disclosure”.
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This provision must be interpreted in light of Article 339 of the Treaty of the Functioning
of the European Union (TFEU), which requires staff members of the EU institutions to
refrain from disclosing information of the kind covered by the obligation of professional
secrecy, in particular information about undertakings, their business relations or their cost
components.
Parts of Documents 1, 3 and 4 contain sensitive business information, views and
positions relating to business strategies, the competitive situation on the market and other
commercial interests of a company, including intellectual property. The disclosure of
these parts would harm commercial interests of the legal entity. There is a real and non-
hypothetical risk that disclosure of these parts of the above-mentioned documents could
undermine and seriously affect the commercial interests of the company at question.
Therefore, access to these parts of the Documents 1, 3 and 4 cannot be granted as the
disclosure is prevented by the exception to the right of access referred to above.
Consequently, the above-mentioned parts of Documents 1, 3 and 4 have been blanked
out.
(iii) Protection of privacy and integrity of individuals Full disclosure of Document 1 - 4 is also prevented by the exception concerning the
protection of privacy and integrity of the individual outlined in Article 4(1)(b) Regulation
1049/2001, since they contain the following personal data:
names and functions of Commission staff members not pertaining to senior
management;
names, functions and signatures of other natural persons.
Article 9(1)(b) of the Data Protection Regulation1 does not allow the transmission of
these personal data, except if you prove that it is necessary to have the data transmitted to
you for a specific purpose in the public interest and where there is no reason to assume
that the legitimate interests of the data subject might be prejudiced. In your request, you
do not express any particular interest to have access to these personal data nor do you put
forward any arguments to establish the necessity to have the data transmitted for a
specific purpose in the public interest.
Consequently, we conclude that, pursuant to Article 4(1)(b) Regulation 1049/2001,
access cannot be granted to the personal data contained in the requested documents, as
the need to obtain access thereto for a purpose in the public interest has not been
substantiated and there is no reason to think that the legitimate interests of the individuals
concerned would not be prejudiced by disclosure of the personal data concerned.
B. Non- Disclosure
We regret to inform you that access to Document 5 cannot be granted as its disclosure is
prevented by exceptions laid down in Article 4 of Regulation 1049/2001.
1 Regulation (EU) 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 and repealing Regulation (EC) No
45/2001 and Decision No 1247/2002/EC, OJ L 295, 21.11.2018, p. 39.
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(i) Protection of commercial interests
Document 5 is covered by the exception of Article 4(2) first indent of Regulation
1049/2001 for the protection of commercial interests. Document 5 originates from a third
party and it contains confidential and commercially sensitive information related to the
respective third parties’ positions, views and strategies. We could not obtain the views of
the concerned third party about a potential disclosure within the given timeframe. After
assessment, we have come to the conclusion that a disclosure of the Document 5 would
undermine its commercial interests. Therefore, access is refused to Document 5 as its
disclosure is prevented by the exception to the right of access laid down in Article 4(2),
first indent of Regulation 1049/2001.
In addition, parts of Document 5 contain personal data, in particular the names, functions,
contact details, handwritten signatures of other natural persons. Thus, its disclosure is
prevented by the exception of Article 4(1)(b) of Regulation 1049/2001 for the reasons set
out in Section A (iii).
4. PARTIAL ACCESS
We have considered whether partial access could be granted to the document to which
access is refused. However, partial access is not possible considering that Document 5 is
covered in its entirety by the abovementioned exceptions of Article 4 of Regulation
1049/2001.
5. OVERRIDING INTEREST IN DISCLOSURE The exceptions laid down in Article 4(2) and 4(3) of Regulation 1049/2001 apply, unless
there is an overriding public interest in the disclosure of the documents identified. Such
an interest must, firstly, be a public interest and, secondly, outweigh the harm caused by
disclosure. We have examined whether there could be an overriding public interest in the
disclosure of the aforementioned (parts of the) documents which are being withheld but
we have not been able to identify such an interest
6. REUSE OF DOCUMENTS You may reuse public documents which have been produced by the
European Commission or by public and private entities on its behalf based on the
Commission Decision on the reuse of Commission documents. You may reuse the (parts
of) disclosed Document 1-3 originating from the Commission free of charge and for non-
commercial and commercial purposes provided that the source is acknowledged and that
you do not distort the original meaning or message of the documents. Please note that the
Commission does not assume liability stemming from the reuse.
Please note that Documents 2 and 3 were drawn up for internal use under the
responsibility of the relevant staff member of DG CONNECT. They solely reflect the
author's interpretation of the interventions made. They do not reflect the position of nor
do they commit the Commission, DG CONNECT and/or any third party referred to and
cannot be quoted as such.
Please note also that part of Document 1 and Document 4 originating from a third party
are disclosed to you based on Regulation 1049/2001. However, this disclosure is without
prejudice to the rules on intellectual property, which may limit your right to reproduce or
exploit the released document without the agreement of the originator, who may hold an
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intellectual property right on them. The European Commission does not assume any
responsibility from their reuse.
7. CONFIRMATORY APPLICATION In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to
make a confirmatory application requesting the Commission to review this position.
Such a confirmatory application should be addressed within 15 working days upon
receipt of this letter to the Secretariat-General of the Commission
by asking for a review
via your portal2 account (available only for initial requests submitted via the portal
account), or via the following address:
European Commission
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1)
BERL 7/076
B-1049 Bruxelles or by email to:
xxxxxxxxxx@xx.xxxxxx.xx
Yours faithfully,
Electronically signed
Roberto Viola
Enclosures:
(4)
2
https://www.ec.europa.eu/transparency/documents-request
Electronically signed on 20/12/2022 13:14 (UTC+01) in accordance with Article 11 of Commission Decision (EU) 2021/2121
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Document Outline
