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:

- All documents related to a meeting with New Corp on 11-07-2023. This is meant to include e-mails, meeting minutes and any other document related to the meeting.

Yours faithfully,

Alexander Fanta
Follow the Money
Rue Auguste Orts 2
1000 Bruxelles

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 'Meeting with News Corp on 11-07-2023'.

As regards the refusal to release documents under Article 4(2), according to case law the General Court requires that the institution undergoes an individual, specific examination to provide a judgment on a case-by-case basis. The European Ombudsman has repeatedly pointed out that not all information about a company is commercially sensitive, so a test should be performed each time to conclude whether the exception applies (European Ombudsman Case: 1701/2011/ANA 24 June 2013; Case: 676/2008/RT 07 July 2010). Disclosure must be granted if it does not undermine the commercial interest of the company, and refusal must be reasoned substantially and sufficiently. The institution is not bound by opposition to disclosure by the economic operator.

As regards your refusal under Article 4(3), first subparagraph, I would like to point out the findings of the court in the De Capitani ruling (T-540/15). The Court stated that “it is precisely openness in the legislative process that contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.” [para. 78] The Court drew a link between openness and the strengthening of democracy and noted that the possibility for citizens to find out the considerations underpinning legislative action was a precondition for the effective exercise of democratic rights.

It further noted that the Court had never before recognized a presumption of non-disclosure in respect of documents that formed part of the legislative process. It observed that “the effectiveness and integrity of the legislative process cannot undermine the principles of publicity and transparency which underlie that process.” [para. 83] The Court accepted that a risk of external pressure could constitute a legitimate ground for restricting access to documents related to the decision-making process, but “the reality of such external pressure must … be established with certainty, and evidence must be adduced to show that there is a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to that external pressure”. [para. 99]

In the present case, the documents appear to concern a lobbying exchange between News Corp and the Commission in regard to the Cookie Pledge, a voluntary agreement to strengthen data protection in online advertising. I argue that, even though the Cookie Pledge is a self-regulatory measure guided by the Commission, it should be seen in the wider legislative context of data protection enforcement. Therefore, any preparatory measure taken should fall under the heightened scrutiny of legislative processes as mentioned above.

Also, I believe the circumstances of legal compliance with data protection legislation should not be considered a business secret, but a matter for public scrutiny.

Additionally, I would like to argue for an overriding public interest in disclosure. A failure to disclose stakeholder input on the Cookie Pledge might give rise to doubt in the public over whether this initiative, which is meant to empower consumers, is actually in their interest.

Kind regards,
Alexander Fanta

Yours faithfully,

Alexander Fanta