Ref. Ares(2023)181728 - 11/01/2023
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR COMMUNICATIONS NETWORKS, CONTENT AND
TECHNOLOGY
The Director-General
Brussels
CNECT.R.4
Tomas Rudl
netzpolitik.org e.V.
Schönhauser Allee 6-7
10119 Berlin
Germany
Via email: ask+request-12016-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your request for access to document –EASE 2022/6047
Dear Mr Rudl,
We refer to your email of 17 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 24 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 and Telefonica
on 31. 05. 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, 9 June 2021, Next Gen EU funding for 5G deployment in rural areas in
Spain, ARES(2022)8400394,
(“Document 1”)
-Paper, 9 June 2021, Public Funding of 5G deployment in rural areas vs State
Aid-Spain, ARES(2022)8400394,
(“Document 2”)
-Back to Office report, Meeting with Telefonica 31 May 2021,
ARES(2022)8538319,
(“Document 3”)
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx
3.ASSESSMENT UNDER REGULATION 1049/2001
Following an examination of the identified document 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 1-3. Full disclosure is
prevented by exceptions to the right of access laid down in Article 4 of Regulation
1049/2001.
(i) Protection of commercial interests
The first indent of Article 4(2) of the 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”.
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 and 2 contain information on strategic priorities and commercial
developments of the legal entity concerned. Document 3 is an internal document that
reflects the positions and informal views of the legal entity concerned. 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 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, 2 and 3 have been blanked
out.
(ii) Protection of privacy and integrity of individuals Full disclosure of Document 1 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 the identified Documents 1 and 2 contain the following personal data:
the names of Commission staff members not pertaining to senior management;
Names, functions and telephone numbers of other natural persons.
Article 9(1)(b) of the Data Protection Regulation (1) 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
(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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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.
4. OVERRIDING INTEREST IN DISCLOSURE The exceptions laid down in Article 4(2) 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.
5. 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 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 Document. Please note that the
Commission does not assume liability stemming from the reuse.
Please note that Document 3 was drawn up for internal use under the responsibility of the
relevant staff member of DG CONNECT. It solely reflects the author's interpretation of
the interventions made. It does not reflect the position of nor does it commit the
Commission, DG CONNECT and/or any third party referred to and cannot be quoted as
such.
Please note that Documents 1 and 2 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 intellectual
property right on them. The European Commission does not assume any responsibility
from their reuse.
6. 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
portal (2) account (available only for initial requests submitted via the portal account),
or via the following address:
(2
)https://www.ec.europa.eu/transparency/documents-request
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European Commission
Secretariat-General
Transparency, Document Management & Access to Documents (SG.C.1)
BERL 7/076
B-1049 Brussels
or by email t
o: xxxxxxxxxx@xx.xxxxxx.xx
Yours faithfully,
Electronically signed
Roberto Viola
Enclosures:
(3)
Electronically signed on 11/01/2023 11:08 (UTC+01) in accordance with Article 11 of Commission Decision (EU) 2021/2121
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