EUROPEAN COMMISSION
Brussels, 14.2.2022
C(2022) 974 final
Ms Lora Verheecke
Corporate Europe Observatory
Rue du Bronze 9
1070 Bruxelles
Belgium
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject: Your confirmatory application for access to documents – GESTDEM
2021/4883
Dear Ms Verheecke,
I am writing in reference to your email of 13 September 2021, registered on the same day,
by which you lodge a confirmatory application in accordance with Article 7(2) of
Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council
and Commission documents2 (hereafter ‘Regulation (EC) No 1049/2001’).
I apologise for the delay in the handling of your request.
In your initial application of 22 July 2021, you requested access to, I quote, ‘for the period
between 30 November 2015 to date, a list of all meetings held by DG Environment with the
following representatives: Shell, BP, Total, ENI, Repsol, Galp and Equinor.’
By letter of 3 September 2021, the Directorate-General for Environment informed you that
it does not hold any documents that would correspond to the description given in your
application.
Furthermore, I note that in its initial reply of 3 September 2021, the Directorate-General for
Environment underlined that the list of all meetings of its Director-General with
organisations and self-employed individuals is publicly available3.
1
OJ L 345, 29.12.2001, p. 94.
2
OJ L 145, 31.05.2001, p. 43.
3
http://ec.europa.eu/transparencyinitiative/meetings/meeting.do?host=ca175ad3-c2c5-457e-8f6d-
f17956bdcc4e
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Moreover, the list of meetings held with organisations and self-employed individuals of the
predecessor of the current Director-General is also publicly available4.
Indeed, an official of the European Commission having the status of Director-General has to
make public information on meetings held with organisations or self-employed individuals on
issues relating to decision-making and policy implementation in the Union in accordance with
the Commission decision 2014/838/EU, Euratom of 25 November 20145.
The publicly available lists enable you to identify the meetings of the Director-General of the
Directorate-General for Environment with the organisations of your interest in the relevant
period. Please note that the same obligation does not apply to lower-ranking officials, such as
the other staff of the Directorate-General for Environment.
In your confirmatory application, you question the absence of any documents. You state
that, I quote, ‘The DG should have kept records of all its meetings with external
stakeholders. It is of good administrative practice to keep a record of all external meetings. I
am only requesting a list of all those meetings.’
Against this background, the European Commission has carried out a renewed, thorough
search for the documents requested. Following this renewed search, I confirm that the
European Commission does not hold any documents that would correspond to the description
given in your application at the date you submitted your confirmatory request.
Indeed, as specified in Article 2(3) of Regulation (EC) No 1049/2001, the right of access as
defined in that regulation applies only to existing documents in the possession of the
institution.
I would like to refer in this respect to the judgment of the Court of Justice in Case C-127/13
P (
Strack v
European Commission), according to which ‘[n]either Article 11 of Regulation
1049/2001 nor the obligation of assistance in Article 6(2) thereof, can oblige an institution
to create a document for which it has been asked to grant access but which does not exist’6.
The above-mentioned conclusion has been confirmed in Case C-491/15 P (
Typke v
European Commission), where the Court of Justice held that ‘the right of access to
documents of the institutions applies only to existing documents in the possession of the
institution concerned and […] Regulation No 1049/2001 may not be relied upon to oblige
an institution to create a document which does not exist.
4
http://ec.europa.eu/transparencyinitiative/meetings/meeting.do?host=ca175ad3-c2c5-457e-8f6d-
f17956bdcc4e&d-6679426-p=28&startDate=01-09-2015
5 Commission Decision of 25 November 2014 on the publication of information on meetings held between
Directors-General of the Commission and organisations or self-employed individuals, OJ L 343/19,
28.11.2014.
6
Judgment of the Court of Justice of 2 October 2014,
Strack v
European Commission, C-127/13 P,
EU:C:2014:2250, paragraph 46.
2
It follows that, […], an application for access that would require the Commission to create a
new document, even if that document were based on information already appearing in
existing documents held by it, falls outside the framework of Regulation No 1049/2001’7.
In the present case, while the Directorate-General for Environment keeps records of
meetings with organisations and self-employed individuals, it does not hold any list of all
meetings of its Director-General nor of its staff with the specific organisations and self-
employed individuals concerned by your request in addition to the publicly available
information on meetings of the Director-General, which is accessible via the abovementioned
links. In this respect, I would like to confirm that compiling such a list in order to fulfil your
request would equate to the creation of a new document in the meaning of the corresponding
paragraphs of the judgments in Cases C-127/13 P and C-491/15 P as neither can such a list be
extracted from a database by means of a normal or routine search8.
The General Court held in Case T-468/16 (
Verein Deutsche Sprache v
Commission) that
there exists a presumption of lawfulness attached to the declaration by the institution
asserting that documents do not exist9. This presumption continues to apply, unless the
applicant can rebut it by relevant and consistent evidence10. The Court of Justice, ruling on
an appeal in Case C-440/18 P, has confirmed these conclusions11.
In your confirmatory application, you do not provide evidence that the institution is in
possession of any further documents corresponding to the description provided in your
application. The General Court held in Case T-468/16 (
Verein Deutsche Sprache v
Commission) that a mere suspicion that there must be more documents does not suffice to
put in question the presumption of legality of the institution’s statement12.
Furthermore, you underpin your request with the following argument, I quote, ‘I see an
overriding public interest in disclosure of the requested information as the meetings were all
directly or indirectly related to climate action, an issue which affects all EU citizens and
who is at the center of the EU's Green Deal, its flagship policy. The public should have the
right to know how major decisions are taken on such a topic.’
Indeed, as specified in Articles 4(2) and 4(3) of Regulation (EC) No 1049/2001, access to
the document requested shall be refused, unless there is an overriding public interest in
disclosure. However, please note that this applies only to existing documents in possession
of the institution. Given the absence of any documents corresponding to the description
given in your application in possession of the European Commission, invoking an
overriding public interest is not applicable in this case.
7
Judgment of the Court of Justice of 11 January 2017,
Typke v
European Commission, C-491/15 P,
EU:C:2017:5, paragraph 31.
8
Typke v
European Commission judgment, cited above, paragraph 47; Judgment of the General Court of 22
October 2011,
Dufour v ECB, T-436/09, EU:T:2011:634, paragraphs 103 and 153.
9
Judgment of the General Court of 23 April 2018,
Verein Deutsche Sprache v
Commission, T-468/16,
EU:T:2018:207, paragraphs 35-36.
10
Ibid.
11 Order of the Court of Justice of 30 January 2019,
Verein Deutsche Sprache v
Commission, C-440/18 P,
ECLI:EU:C:2019:77, paragraph 14.
12
Verein Deutsche Sprache v
Commission judgment,
cited
above, paragraph 37.
3
Given that the European Commission does not hold any such documents corresponding to
the description given in your application, it is not in a position to fulfil your request.
Finally, I draw your attention to the means of redress available against this decision. You
may either bring proceedings before the General Court or file a complaint with the
European Ombudsman under the conditions specified respectively in Articles 263 and 228
of the Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Ilze JUHANSONE
Secretary-General
4