Ref. Ares(2024)5951604 - 21/08/2024
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR TRADE
The Director-General
Brussels
TRADE/SW/R.3(2024)6376220
Ms Margarida Da Silva
KNSM-laan 17
1019 LA Amsterdam
THE NETHERLANDS
By email only – with request for
explicit acknowledgment of receipt
by email reply:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for public access to documents – EASE 2024/3668
Dear Ms Da Silva,
I refer to your email application dated 8 July 2024, registered on 9 July 2024 under the
above-mentioned EASE reference number, in which you make a request for public access
to documents under Regulation (EC) No 1049/20011 (‘Regulation 1049/2001’).
1. SCOPE OF YOUR REQUEST
You have requested public access to the following documents:
‘All documents, including but not limited to attendance lists, agendas, background
papers, minutes/notes and email correspondence about or summarising, the following
meetings:
– 16/10/2023 – Valdis Dombrovskis (Executive Vice-President) – Keidanren (Japan
Business Federation)
– 06/06/2023 – Elina Melngaile (Cabinet member), Kevin Keary (Cabinet member) –
Daiichi Sankyo Europe GmbH
– 01/03/2023 – Kevin Keary, Cristina Rueda Catry – European Services Forum
– 22/03/2024 – Michael Hager – Intel Corporation.’
1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 20 May 2001
regarding public access to European Parliament, Council and Commission documents (Official Journal
OJ L 145, 31.5.2001, p. 43).
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË – Tel. +32 22991111
Office: CHAR 07/067 – Tel. direct line +32 229-60143
xxxxxx.xxxxxx@xx.xxxxxx.xx
We have identified
11 documents falling within the scope of your request:
01 – Ares(2023)4050951 – Meeting request – Keidanren – 16.10.23;
02 – Ares(2023)4050951 – Meeting request – Keidanren – Attachment 1 – CV;
03 – Ares(2023)4050951 – Meeting request – Keidanren-Attachment 2 – Member list;
04 – Ares(2023)7727225 – Meeting minutes – Keidanren – 16.10.23;
05 – Ares(2023)4334503 – Meeting request – Daiichi – 06.06.23;
06 – Ares(2023)4334503 – Meeting request – Daiichi – Attachment – Company
introduction;
07 – Ares(2023)4334325 – Meeting minutes – Daiichi – 06.06.23;
08 – Ares(2023)385463 – Meeting request – ESF – 01.03.23;
09 – Ares(2023)1733079 – Meeting minutes – ESF – 01.03.23;
10 – Ares(2024)1388126 – Meeting request- Intel Corporation – 22.03.24;
11 – Ares(2024)5443732 – Meeting minutes – Intel Corporation – 22.03.24.
For details and numbering kindly refer to the enclosed Annex ‘List of identified
documents and type of disclosure’.
2. ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
Having examined the requested documents under the applicable legal framework,
partial
access is granted to documents 01, 03-04 and 07-10, with only personal data redacted
in application of Article 4(1)(b) of Regulation 1049/2001, and
partial access to
document 06 with some parts redacted
under Article 4(2)(a) of Regulation 1049/2001
(protection of commercial interests of a natural or legal person, including intellectual
property). In addition to personal data,
document 05 has been also redacted under Article
4(2)(a) of Regulation 1049/2001 and
document 11 under Article 4(1)(a), third indent
(protection of international relations).
Document 02 is entirely withheld, as there would be no meaningful content remaining
after the redaction of the sensitive personal data Article 4(1)(b) of Regulation 1049/2001.
For further details please see below under points 2.1 to 2.4.
Copies of the accessible documents in their redacted version are enclosed to the present
reply letter.
2.1. PROTECTION OF THE PRIVACY AND INTEGRITY OF THE INDIVIDUAL –
ARTICLE 4(1)(B) OF REGULATION 1049/2001
2.1.1. ‘Personal data’
Article 4(1)(b) of Regulation 1049/2001 provides that
‘[t]he institutions shall refuse
access to a document where disclosure would undermine the protection of: […] privacy
and the integrity of the individual, in particular in accordance with Community
legislation regarding the protection of personal data’.
2
The applicable legislation in this field is Regulation (EU) No 2018/17252 (hereafter
‘Regulation 2018/1725’ or ‘Data Protection Regulation’).
Article 3(1) of Regulation 2018/1725 provides that personal data means
‘any information
relating to an identified or identifiable natural person […]’. The Court of Justice has
specified that
any information, which by reason of its content, purpose or effect, is linked to
a particular person is to be considered as personal data.3 Please note in this respect that the
names, signatures, functions, email addresses, telephone numbers etc., and/or initials
pertaining to staff members of an institution are to be considered personal data4, as well
as those of individuals belonging to third parties.
We disclose
documents 01, 03-05 and 07-11 only partially
, as they contain certain
personal data, which must be redacted in accordance with Article 4(1)(b) of
Regulation 1049/2001, namely:
– the names/initials and contact information of Commission staff members not pertaining
to the senior management;
– the names/initials and/or contact details of other natural persons – other than
Commission staff members;
– other information relating to an identified or identifiable natural person.
2.1.2. Question of ‘transfer’ of personal data and conclusion
Article 9(1)(b) of Regulation 2018/1725 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, I conclude that, pursuant to Article 4(1)(b) of 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 as 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.
2 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 20 May 2001
regarding public access to European Parliament, Council and Commission documents (Official Journal
OJ L 145, 31.5.2001, p. 43).
3 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.
4 Judgment in
Peter Novak v Data Protection Commissioner, case C-434/16, ECLI:EU:T:2018:560,
points 33-35.
3
2.2. PROTECTION OF COMMERCIAL INTERESTS (DOCUMENTS 5 AND 6) –
ARTICLE 4(2), FIRST INDENT OF REGULATION 1049/2001
2.2.1. Relevance of Article 4(2), first indent of Regulation 1049/2001 in relation to
document 1
Article 4(2), first indent of Regulation 1049/2001 provides that
‘[t]he 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’.
While not all information concerning a company and its business relations can be regarded
as falling under the exception of Article 4(2), first indent5, it appears that the type of
information covered by the notion of commercial interests would generally be of the kind
protected under the obligation of professional secrecy6. Accordingly, it must be information
that is
‘known only to a limited number of persons’,
‘whose disclosure is liable to cause
serious harm to the person who has provided it or to third parties’ and for which
‘the
interests liable to be harmed by disclosure must, objectively, be worthy of protection’7.
Documents 05 and 06 refer to publicly undisclosed sensitive information about the
business strategy and economic figures of a third party, i.e. the document originator. The
release of such information would undermine the protection of the commercial interests
of this third party.
Therefore, the respective parts of
documents 05 and 06 need to be protected, and
accordingly be redacted under the first indent of Article 4(2) of Regulation 1049/2001.
2.2.2. Question of overriding public interest
The exception of Article 4(2), first indent (protection of commercial interests of a natural
or legal person, including intellectual property) of Regulation 1049/2001 applies, unless
there is an overriding public interest in disclosure of the document. Such an interest must,
first, be public and, secondly, outweigh the harm caused by a disclosure.
Accordingly, we have considered whether the risks attached to the release of the withheld
part of
documents 05 and 06 are outweighed by the public interest in accessing the
requested document. We have not been able to identify any such public interest capable of
overriding the commercial interests of the companies concerned. In the present case, there is
no such evidence.
5 Judgment in
Terezakis v Commission, T-380/04, EU:T:2008:19, point 93.
6 See Article 339 of the Treaty on the Functioning of the European Union.
7 Judgment in
Bank Austria v Commission, T-198/03, EU:T:2006:136, point 29.
4
2.3. PROTECTION OF THE PUBLIC INTEREST AS REGARDS INTERNATIONAL RELATIONS
(DOCUMENT 11) – ARTICLE 4(1)(A), THIRD INDENT OF REGULATION 1049/2001
Article 4(1)(a), third indent of Regulation 1049/2001 provides that
‘[t]he institutions
shall refuse access to a document where disclosure would undermine the protection of:
the public interest as regards: […] international relations’.
Disclosing parts of
document 11 would undermine the protection of the public interest
as regards international relations, because this information – if disclosed – would put in
the public domain the EU’s and its Member States’ strategic and policy positions and
related internal policy considerations related to semiconductors.
We therefore consider that the confidentiality of parts of
document 11 is fully protected
by a coherent application of Article 4(1)(a), third indent of Regulation 1049/2001.
Therefore, public access to these parts of
document 11 has also to be refused.
2.4. QUESTION OF PARTIAL ACCESS (DOCUMENT 02)
We have considered whether partial access could be granted to
document 02. However,
partial access is not possible in the present case, as there would be no meaningful content
remaining after the redaction of the sensitive personal data. Therefore, this document is
entirely withheld.
3. DISCLAIMER(S)
Please kindly pay attention to the following: you may reuse public documents, which have
been produced by the European Commission or by public and private entities on its behalf,
based on
Commission Decision 2011/833/EU of 12 December 2011 on the re-use of
Commission documents8. You may reuse the documents disclosed free of charge 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 any liability stemming from the reuse.
Furthermore, please note that documents containing content of third-party origin, i.e.
either documents originating from third parties or documents containing parts of third-
party origin (in the present case:
documents 01, 03, 05, 06, 08 and 10) are disclosed to
you based on Regulation 1049/2001. However, disclosure of such third-party content is
without prejudice to the rules on intellectual property, which may limit your right to
reproduce or exploit the released documents without the agreement of the originator, who
may hold an intellectual property right on them. The European Commission does not
assume any responsibility from the reuse of those documents or parts of documents.
Finally,
documents 04, 07, 09 and 11 were drawn up under the responsibility of the
relevant Commission official. They solely reflect the author's interpretation of the
interventions made and do not set out any official position of any third party to which the
documents may refer, which was/were not necessarily consulted on their content. They
8 OJ L 330, 14.12.2011, p. 39.
5
do not necessarily reflect the position of the Commission and, therefore, cannot be quoted as
such.
4. POSSIBILITY OF A CONFIRMATORY APPLICATION
In accordance with Article 7(2) of Regulation 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, either by
•
asking for a review via your portal9 account (available only for initial requests
submitted via the portal account),
or
•
email to xxxxxxxxxx@xx.xxxxxx.xx, or
•
letter post to the following address:
European Commission
Secretariat-General
‘Transparency, Document Management & Access to Documents’ (unit SG C.1)
BERL 7/76
Rue de la Loi 200/Wetstraat 200
1049 Brussels
BELGIUM.
Yours sincerely,
Sabine WEYAND
Enclosures: (11)
Annex ‘List of identified documents and type of disclosure’,
10 documents
(partially redacted).
9
https://www.ec.europa.eu/transparency/documents-request
6
Electronically signed on 21/08/2024 11:20 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121
Document Outline