Document 8.pdf

Ref. Ares(2016)5416325 - 16/09/2016

Under  the  Treaty  (Article  15(3)  TFEU),  any  citizen  has  a  right  of  access  to  documents  held  by  the  EU's  institutions,  bodies,  offices  and
agencies. For the Commission the rules governing the exercise of this right are laid down in Regulation (EC) No 1049/2001 regarding public
access
to
European
Parliament,
Council
and
Commission
documents
-
http://eur-lex.europa.eu/legal-
content/EN/TXT/?aid=1410512987716&uri=CELEX:32001R1049  and  further  detailed  in  its  Detailed  Rules  of  application  :  http://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001D0937&qid=1449740600369&from=EN
Under Article 7 of Regulation 1049/2001, in the event of a total or partial refusal, or in the absence of a response, the applicant can make a
confirmatory  application  to  the  Secretary-General,  who  will  then  take  a  final  decision  on  behalf  of  the  Commission.  The  applicant  can  then
challenge this decision either by filling a complaint to the Ombudsman or by appeal to the General Court.
1.  CHECK IF IT REALLY IS A REQUEST FOR ACCESS TO DOCUMENTS
Regulation 1049/2001 applies only to requests for access to existing documents, i.e. "any content whatever its medium (written on paper or stored
in electronic form or as a sound, visual or audio-visual recording) concerning a matter relating to the policies, activities and decisions falling within
the institution's sphere of responsibility" (Article 3 of Regulation (EC) No 1049/2001).
•  If the request relates to information which is not contained in any existing documents, and if replying would involve compiling information
from a number of different documents, it should be considered as a request for information to be processed in accordance with the Code of
Good Administrative Behaviour: https://myintracomm.ec.europa.eu/hr admin/en/code/Pages/conduct.aspx
•  A document that is 30 years old or more can normally be accessed under the rules on the opening to the public of the historical archives.
Contact the Historical Archives (e-mail: OIB ARCHIS BASE).
•  If documents are requested by Member States' national administrations, this is not an access to documents request and must be processed
in the framework of sincere cooperation according to Article 4(3)TEU.
•  Some  documents  are  already  in the  public  domain: check in  the  Register  of  Commission  documents,Eur-Lex  or  other  publicly  available
search tools.
2.  REGISTER THE APPLICATION FOR ACCESS TO DOCUMENTS
A copy of the application must be sent, as soon as possible, to the team in charge of access to documents in your DG, which will check/ask for the
postal  address,  register  the  request  in  GESTDEM  (shared  database  for  'access  to  documents'  coordinators)  and  send  an  acknowledgement  of
receipt to the applicant. This team will also inform you of the administrative rules in force on access to documents in your DG – see coordinator's
list: https://myintracomm.ec.europa.eu/sg/docinter/documents/liste_corresp_fr.pdf.
3.  PREPARE A REPLY TO THE APPLICANT (if you are the person who should reply)
A reply must be sent to the applicant, in writing and in the language in which the application was submitted, within 15 working days from the date
on which the application was registered by your DG's 'access to documents' team. If it is not possible to reply within that deadline, a holding reply
must be sent.  Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application.
4.  HOW SHOULD I ASSESS A REQUEST?
Under  the  principle  of  transparency,  citizens  are  entitled  to  the  widest  possible  access  to  Commission  documents  (Article  1  of
Regulation (EC) No 1049/2001)
When  processing  a  request  for  access,  documents  are  to  be  searched  only  in  ARES  or  another  document  management  system  –  see  note
Ares(2015)182108:  https://myintracomm.ec.europa.eu/sg/docinter/Documents/DMO_access-to-doc.pdf.    You  should  draw  up  a  full  list  of  the
documents to which the application refers (including their ARES or equivalent registration number, the author, addressee,  subject matter or title
and date) and closely examine the content of each document (and its specific parts) in order to determine whether disclosure would undermine one
or more of the interests protected by Article 4 of Regulation No 1049/2001.
The list of documents must be attached to  or be included in your reply, except in cases where the  Commission may dispense with an individual
examination of each document (check with the coordinator in your DG).
In principle, no document is spared the detailed examination of its contents, even if it is 'classified'.
If  this  examination  indicates  that  a  classified  document  must  be  disclosed,  it  will  first  have  to  be  declassified.  See:
https://myintracomm.ec.europa.eu/corp/security/EN/Legislation/Pages/index.aspx
•
If you are unable to identify the document(s) asked for: You should ask the applicant to provide you with additional Information which will
enable you to identify the document or to narrow down the request. In that case, the 15-working day deadline for reply will apply only from
the date by which you receive this information.  See standard letters: https://myintracomm.ec.europa.eu/sg/docinter/Pages/tools.aspx.
•
If  you  think  the  scope  of  the  request  is  too  large  to  be  handled  within  the  extended  15  +  15  working-day  deadline:  inform  the
applicant in writing, referring to Article 6(3) of Regulation (EC) No 1049/2001, and confer with a view to finding a fair solution. See standard
letters:
https://myintracomm.ec.europa.eu/sg/docinter/Pages/tools.aspx
and
guidance
note
on
wide
scope
request:
https://myintracomm.ec.europa.eu/sg/docinter/Documents/ATD_Info_22_EN_wide-scope.pdf.

In  the  case  of  wide-scope  request,  the  statutory  deadline  of  15  working  days  may  be  replaced  by  a  timetable  agreed  with  the  applicant  under
Article 6(3) of Regulation (EC) No 1049/2001. If a fair solution cannot be found, you may unilaterally restrict the scope of the application to those
parts that can be handled within 30 days, counting from the moment of registration of the application. In exceptional cases, you could even refer to
the proportionality principle to justify a refusal to process the application on the grounds that  to do so would involve a disproportionate amount of
work, provided that you have genuinely attempted to agree on a fair solution.
5.  WHAT IF I HAVE TO REFUSE AN APLICATION (total or partial refusal)?
The answer must:
•
clearly indicate the grounds for the refusal based on one of the exceptions listed in Article 4 of Regulation (EC) No 1049/2001 and set out
specific and detailed arguments justifying the refusal. In case of a full refusal, you should specify that you also examined the possibility to
grant partial access.
•
inform the applicant of his/ her right to appeal to the Secretary General in relation to the application;
•
be signed by the Director-General and sent by registered letter with acknowledgment of receipt.
If only part of the document requested is covered by one or more of the exceptions listed in the Regulation, you must release the remaining parts
(partial access) and give reasons for the partial refusal as specified above. Save in cases where the refusal is based on the exceptions in Article
4(1), the potential harm caused by disclosure must be weighed against the public interest in disclosure.
6.  WHAT IF THE DOCUMENT REQUESTED CONTAINS PERSONAL DATA?
The  disclosure  to  third  parties  of  personal  data  is  covered  by  Regulation  45/2001.  In  case  of  doubt,  please  consult  your  DG's  Data  Protection
Coordinator:  h ttps://myintracomm.ec.europa.eu/serv/en/dpo/home/mandate/Pages/mandate.aspx
The  applicant  must  prove  the  necessity  to  obtain  the  personal  data.    In  addition,  the  legitimate  interests  of  the  person  in  question  must  not  be
harmed.
No access is granted to the names of Commission staff  not forming party of senior management (defined at Director level and above) - see note
Ares(2015)1350426:https://myintracomm.ec.europa.eu/sg/docinter/Documents/ATD_Info_19_EN_Names_functions_Commission_staff_Guidelines
.pdf.
7.  WHAT ABOUT DOCUMENTS RECEIVED FROM THIRD PARTIES / MEMBER STATES?
Consult the third party, including Member States, to obtain their opinion (or their agreement in the case of a MS) on whether the document may
be disclosed, unless it is clear that the document may - or must not - be released.
If the third party objects to disclosure, you must refuse access to the document or the parts of the document concerned, reproducing the argument
used by the third party, even if their objections are not of a nature to justify refusal. The Commission can decide to disregard the opposition of a
third  party  only  at  the  stage  of  the  confirmatory  application.  The  DG  is  however  advised,  already  at  initial  level,  to  enquire  about  the  specific
reasons under Regulation 1049/2001 for refusing access if the Member State or third party failed to provide such reasons.
8.  WHAT IF I AM UNABLE TO REPLY WITHIN THE 15-DAYS DEADLINE?
Send  the  applicant  a  letter,  before  the  expiry  of  the  15-day  deadline,  notifying  him/her  of  the  extension  of  the  deadline  and  giving
reasons for the new deadline.
Failure to reply within the prescribed time limit constitutes a tacit refusal and entitles the applicant to make a confirmatory application.
9.  WHO SHOULD SIGN THE REPLY TO AN INITIAL APPLICATION?
•
Positive replies can be signed by any official to whom the director general has delegated this power.
•
Negative replies (total or partial) must be signed by your director general (see attached Note from Ms Day and Mr Romero Requena
(21.1.2010): https://myintracomm.ec.europa.eu/corp/sg/en/docinter/Documents/check list 2011.pdf).
•
Partial replies must be signed by your director general.  Exception: when only personal data (for which the applicant has not expressed a
specific interest) has been redacted, and access to the rest of the document is granted, it can be signed by the HoU.
10.
WHAT SHOULD I DO BEFORE SUMITTING THE REPLY FOR SIGNATURE?
It is compulsory to use the check-list in the attached note from Ms Day and Mr Romero Requena, mentioned above, in order to be sure that
your reply meets the requirements imposed by Regulation (EC) No 45/2001. The check-list must be included with your draft negative answer
in the signataire sent to the director general, but must not be attached to the reply to the applicant.

11-maj-16  - SG/B/4 -  This document has been drafted strictly for information purposes and does not constitute a legal document.
Internal site 'Access to Commission documents': https://myintracomm.ec.europa.eu/sg/docinter/Pages/index.aspx