WIN 0011.pdf

Document code:

WIN-0011.11

Security level:

Internal

Effective date:

21/09/2021

Processing of applications for access to documents

1.  Purpose
This document describes the handling of initial and confirmatory applications for access to
documents  submitted  to  ECHA  under  Regulation  (EC)  No  1049/2001  on  public  access  to
documents  (“ATD  Regulation”).  It  applies  to  all  staff  members  of  ECHA  dealing  with
applications  for  access  to  documents.  ATD  contact  persons  are  designated  in  each
Directorate  and  work  in  close  collaboration  with  the  ATD  coordinators  of  LAU  who  are
managing the process and provide legal advice.

2.  Scope
This process starts with the receipt of an application for access to documents and generally
ends with the  sending of  the final reply at initial stage. In case the Applicant decides to
request the ED to review the initial decision (confirmatory application under Article 8 of the
ATD Regulation), the process ends with the decision by the ED.
This  process  does  not  concern  the  handling  of  applications  submitted  in  relation  to
procedural documents drawn up solely for a specific appeal procedure and which are in the
sole possession of the Board of Appeal. These applications are processed by the Registry of
the Board of Appeal.  However, any procedural documents drawn up by the Agency for a
specific appeal procedure are not deemed to be in the sole possession of the Board of Appeal
and their possible disclosure is processed by LAU.
3.  Description
1. Filtering
1.1 Receipt of an application
Responsibility/Role
Forward  the  received  application  to  ATD  functional  mailbox  (access-to-
ECHA staff member
xxxxxxxxx@xxxx.xxxxxx.xx),  if  the  request  came  in  through  other
channels and in any case when there is doubt whether it is an access to
document application.
1.2 Check if the documents are in the sole possession of the BoA
Responsibility/Role
Does the application concern documents, which are in the sole possession
ATD coordinator
of the BoA? In order to define this, contact the Registry of BoA.
If Yes, register the application in ATD SP and forward it to the Registry of
BoA. Then go to 6.6.

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Document code:

WIN-0011.11

Security level:

Internal

Effective date:

21/09/2021
Processing of applications for access to documents

1.3 Identification of the application as an ATD application
Responsibility/Role
Is the application an ATD application?
ATD coordinator
If Yes, register the application in the ATD SP, send an acknowledgement
of the receipt of application by email and go to 1.4.
If No go to 2.1 for handling the access to information requests,
or
go to 2.2 for handling the access to own file.
1.4 Check of the content of the application
Responsibility/Role
Is the application sufficiently precise?
Consult an ATD contact person from a competent Unit/Directorate.
ATD coordinator
If No, go to 1.5.
If Yes, go to 3.1.
1.5 Clarification of the scope of the application
Responsibility/Role
Ask the applicant by e-mail to clarify the application. Provide information
ATD coordinator
and/or  assist  the  applicant  to  help  identifying  the  document  requested.
Inform the applicant that the deadline for replying shall start running only
from the time that ECHA has received the clarification.
In the same email acknowledge the receipt of application. In some cases
combine with the fair solution (Point 4.2).

2. Processing of other requests
2.1. Handling access to information requests
Responsibility/Role
These requests shall be handled in accordance with the ECHA Code of good
ATD coordinator
administrative behaviour.

Is the reply to the request easily available?

If  Yes,  reply  directly  to  the  requestor.  If  needed,  consult  with  an  ATD
contact person from a competent Unit/Directorate.

If No, channel the request (via the ECHA Information Desk) without delay

to the competent service of ECHA.

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Document code:

WIN-0011.11

Security level:

Internal

Effective date:

21/09/2021
Processing of applications for access to documents

2.2. Handling access to own file
Responsibility/Role
These requests are handled in line with ED decision ED/44/2015 on access
ATD coordinator
to own file in ECHA.

3. Identification of documents
3.1 Identification whether ECHA holds documents
Responsibility/Role
Does  ECHA  hold  (is  an  author  or  is  in  the  possession  of)  the  requested
ATD coordinator
document?
Consult an ATD contact person.
If Yes, go to 4.1.
If No, go to 3.2.
3.2 Draft of reply (no document exists)
Responsibility/Role
Assign  the  application  to  the  competent  Unit/Directorate  (ATD  Contact
ATD coordinator
Person) together with a template for drafting the reply.
Go to 6.3.

4. Processing of applications for ATD
4.1 Identification of the need to find a fair solution
Responsibility/Role
Is the application relating to a very long document/very large number of
ATD coordinator
documents or is of a very complex nature? (E.g. the core task of the Agency
is jeopardized).
If Yes, go to 4.2.
If No, go to 4.3.
4.2 Fair solution
Responsibility/Role
Contact the applicant with a view of finding a fair solution (e.g. agree on a
ATD coordinator
different timeline or the limitation of the scope of application).
Consult the ATD contact person of the competent Unit/Directorate.
If a fair solution has been accepted, assign the application in line with 4.3.
and go to 4.7.
If the fair solution has not been accepted, go to 4.4.
Upload ATD SP accordingly.

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Document code:

WIN-0011.11

Security level:

Internal

Effective date:

21/09/2021
Processing of applications for access to documents

4.3 Assignment of the handling of the application
Responsibility/Role
Assign  the  application  by  email  to  the  competent  Unit/Directorate
ATD coordinator
according to the rules below (copy in the competent HoU):

-
When a reply needs to  be coordinated among several Directorates
assign  to  the  volunteering  “lead”  Directorate  (Directorate  which
holds most of the documents in the scope);

-
In  all  other  cases,  assign  the  application  to  the  ATD  contact
person(s) of the competent Unit/Directorate.
If necessary, email to the ATD contact person(s) further considerations that
might be taken into account for the handling of the application.
The  assignment  shall  indicate  the  legal  deadline  for  replying  to  the
application.  The  deadline starts  running  from  the  day  of  registration  (or
clarification under 1.5).
If the applicant is a journalist, inform the Communications Unit by writing
to ECHA Press Room (xxxxx@xxxx.xxxxxx.xx)
4.4 Rejection on the basis of proportionality
Responsibility/Role
If a fair solution is refused by an applicant, in exceptional cases it needs to
ATD  contact person(s)
be  considered  not  to  process  an  application  for  initial  application  on  the
ground  that  the  workload  relating  to  the  disclosure  would  be
disproportionate  when  compared  with  the  objective  of  the  principle  of
transparency.
Seek legal advice of an ATD coordinator.
If a decision not to process the application has been taken, go to 6.3.

4.5 Assessment to extend the deadline
Responsibility/Role
In some cases (e.g. application relating to a very large document or to a
ATD contact person(s)
very large number of documents, and/or where suppression of confidential
information  is  needed)  it  might  be  that  an  extension  of  the  deadline  is
needed.
The extension of deadline does not apply when the applicant accepted the
fair solution with regard to longer deadline than 15+15 working days.
Is an extension of the deadline needed?
If Yes, go to 4.6.
If No, go to 4.7.
4.6  Extension of the deadline
Responsibility/Role
A letter approved by the HoU or the Director must be sent to the applicant
ATD contact person(s)
extending the time limit for the reply by another 15 working days (before
the expiry of the initial deadline).
The letter must state the reason(s) for an extension.  Note that pursuant
to Article 7(3) of the ATD Regulation this can only be done in exceptional

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Document code:

WIN-0011.11

Security level:

Internal

Effective date:

21/09/2021
Processing of applications for access to documents

cases,  for  example  in  the  event  of  applications  relating  to  a  very  long
document or to a very large amount of documents.
If needed, request the review of an ATD coordinator.
Upload the letter to ATD SP accordingly.
4.7  Determination of the author of the document
Responsibility/Role
Is the application relating to an ECHA document?
ATD contact person(s)
If Yes, go to 6.
Is the application relating to document(s) originating from a third party?
If yes, go to 5.

5. Third party consultation
5.1 Assessment of the need for consultation
Responsibility/Role
Is the application relating to a document originating from a Member State?    ATD contact person(s)
If Yes, go to 5.2.
Is  the  application  relating  to  a  document  originating  from  other  third-
parties?
If Yes, go to 5.3.
5.2 Consultation with Member State
Responsibility/Role
Initiate  the  mandatory  third-party  consultation.  Consult  the  ATD
ATD contact person(s)
coordinator.
The third-party author shall have a deadline for reply, which shall be no
shorter than 5 working days but must enable the Agency to abide by its
own deadlines for the reply.
Send a letter to the author signed by the HoU or the Director.
If the third-party agrees with disclosure, go to 6.3.
In the absence of an answer within the prescribed period, call the Member
State.  In  the  continuous  absence  of  a  reply  the  Agency  shall  decide  in
accordance with the implementing rules, taking into account the legitimate
interests of the third party on the basis of the information at its disposal
(See article 5, ECHA/MB/12/2008).
Following the receipt of the reply, assess whether access to the requested
document  can  be  granted  in  full  or  partially  (i.e.  parts  of  the  requested
document covered by one of the exceptions).
If the Agency intends to give access to the document against the explicit
opinion of the Member State, seek advice of an ATD scientific expert (e.g.
assessment of confidential business information and intellectual property
claims)  and  from  the  ATD  coordinator.  Contact  once  more  the  Member
State  in  order  to  reach  an  agreement  upon  disclosure.  In  case  of  the
continuation of a disagreement clarify with the Member State whether it
invokes Article 4(5) of the ATD Regulation. If this is the case, the Agency

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Document code:

WIN-0011.11

Security level:

Internal

Effective date:

21/09/2021
Processing of applications for access to documents

shall at initial stage of processing the ATD request not disclose the (parts
of the) documents against the opinion of the Member State.
Go to 6.
5.3 Consultation with other third-parties
Responsibility/Role
Unless it is clear that the document shall or shall not be disclosed, consult  ATD contact person(s)
the third party author on the disclosure or whether it invokes one of the
exceptions provided for under Article 4 of the ATD Regulation. Consult an
ATD coordinator when needed.
Send a letter to the third party author approved by the HoU or the Director.
Consult an ATD coordinator.
The third-party author consulted shall have a deadline for reply which shall
be no shorter than 5 working days but must enable the Agency to abide by
its own deadlines for the reply.
Put
in
cc
ECHA
ATD
functional
mailbox
(access-to-
xxxxxxxxx@xxxx.xxxxxx.xx) and update ATD SP. Request as an outlook
option a “Delivery and Read receipt” and ask the third party to acknowledge
the receipt of email.
If the third-party agrees with disclosure, go to 6.3.
In the absence of an answer within the prescribed period, or if the third
party  is  untraceable  or  not  identifiable,  the  Agency  shall  decide  in
accordance with the implementing rules, taking into account the legitimate
interests of the third party on the basis of the information at its disposal
(See article 5, ECHA/MB/12/2008).
Following the receipt of the reply, assess whether access to the requested
document  can  be  granted  in  full  or  partially  (i.e.  parts  of  the  requested
document covered by one of the exceptions).
If the Agency intends to give access to the document against the explicit
opinion of the third party consulted, a letter shall be drafted to inform it of
ECHA’s intention to disclose the document after a 10 working day period.
This period is to allow the author to inform ECHA that it intends to challenge
its decision in Court.
Seek advice of an ATD scientific expert when needed (e.g. assessment of
confidential business information and intellectual property claims).
Seek legal input and advice from an ATD coordinator.
Send a letter to the third party author approved by the HoU or the Director.
Put in cc ECHA ATD functional mailbox (access-to-
xxxxxxxxx@xxxx.xxxxxx.xx) and update ATD SP. Request as an outlook
option a “Delivery and Read receipt” and ask the third party to
acknowledge receipt  when sending the email.
If necessary (e.g. summer holiday period), contact the third party over
the phone to ensure that it has received the relevant communications.

5.4 Request for identity

If the third-party consulted requests the information on the identity of the  ATD coordinator
ATD applicant triggering the third-party consultation, consult the applicant

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Document code:

WIN-0011.11

Security level:

Internal

Effective date:

21/09/2021
Processing of applications for access to documents

informally by email on the disclosure of its identity (preferably the identity
of the legal person it represents, where applicable).
In case of a positive reply, disclose the requested information to the third
party by email.
If the applicant rejects disclosure or does not reply, inform the third-party
about the negative outcome and the possibility to submit an ATD request
for the actual application triggering the third-party consultation.

6. Decision on the application and sending of the replies
6.1  Assessment  on  the  application  of  the  exceptions  under  the  ATD  Responsibility/Role
Regulation
Decide  if  access  is  granted  or  partially  granted  /  refused  because  an  ATD contact person(s)
exception under the ATD Regulation applies.
If partial access is granted go to 6.2.
Seek advice of an ATD scientific expert if needed.
Seek legal advice from an ATD coordinator.
If full access is granted or the access is fully refused go to 6.3.
6.2 Blanking of items falling under the exceptions of the ATD Regulation
Responsibility/Role
Carry out the redaction of the document.
ATD contact person(s)

6.3 Drafting of the reply
Responsibility/Role
Draft a reply. In case of partial access or refusal of access explain which  ATD contact person(s)
exception(s) apply.
Seek advice of an ATD scientific expert if needed. Request the review of
the draft reply by the ATD coordinator.
6.4 Reminder of the deadline
Responsibility/Role
If no information and/or draft reply for a pending application is received,  ATD coordinator
contact  the  ATD  contact  person  concerned  to  remind  the  up-coming
deadline.
6.5 Sending of the reply
Responsibility/Role
Send the reply signed by the competent HoU or Director to the applicant
ATD contact person(s)
and if needed attach the relevant documents. When sending the reply put
in CC the ECHA ATD functional mailbox (access-to-
xxxxxxxxx@xxxx.xxxxxx.xx).
6.6 Updating of ATD SP
Responsibility/Role
Update SP the ‘case file’, the ‘case activity’ and the documents library.
ATD contact person(s)

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Document code:

WIN-0011.11

Security level:

Internal

Effective date:

21/09/2021
Processing of applications for access to documents

7. Receipt of a confirmatory application
7.1 Receipt
Responsibility/Role
Receipt of a confirmatory application for access to documents.

ECHA staff member
Forward  received  application  to  ATD  functional  mailbox  (access-to-
xxxxxxxxx@xxxx.xxxxxx.xx) and to the ATD coordinator.

7.2. Registration
Responsibility/Role
Upon receipt, the ATD coordinator shall register the request in the ATD SP.  ATD coordinator
The deadline of 15 working days for reply shall be counted from the day of
the registration.

The  ATD  coordinator  shall  send  the  Applicant  an  acknowledgement  of
receipt.

The  Executive  Director  and  the  Director,  Head  of  Unit  and  ATD  contact
person(s)  from  the  relevant  Directorate  shall  be  informed.  Where
appropriate,  a  meeting  is  organised  with  the  ATD  contact  person(s)  to
agree on the approach and next steps.
7.3 Third party consultation
Responsibility/Role
Check  the  necessity  to  undertake/repeat  a  third  party  consultation  ATD coordinator
pursuant to Article 4(4) ATD Regulation.

If a third party consultation is undertaken, the third party shall be given a
deadline for reply which shall be no shorter than 5 working days.

If the Agency intends to give access to the document against the explicit
opinion of the third party, it shall inform it of this intention to disclose the
document after a 10 working day period and shall draw his attention to the
remedies available to oppose disclosure.

Section 5.3 applies mutatis mutandis.

7.4 Extension of the deadline
Responsibility/Role
Analyse whether the deadline for the reply to the confirmatory application  ATD coordinator
needs to be extended (+ 15 working days). Note that pursuant to Article
8(2) of the ATD Regulation this can only be done in exceptional cases, for
example in the event of applications relating to a very long document or to
a very large amount of documents.

Sections 4.1 and 4.2 apply mutatis mutandis.

The  applicant  shall  be  notified  in  advance  and  detailed  reasons  shall  be
given.

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Document code:

WIN-0011.11

Security level:

Internal

Effective date:

21/09/2021
Processing of applications for access to documents

7.5 Analysis
Responsibility/Role
Analysis  as  to  whether  the  initial  decision  should  be  rectified,  partly  ATD coordinator
rectified or confirmed. The competent Directorate taking the decision on
the initial ATD application shall be consulted (Director and HoU).

Consider  a  meeting  of  ED,  LAU  and/or  the  representatives  of  the
Directorate taking the decision at initial stage.

The scope, content, history of the decision-making process and possible
critical points of granting access to the requested documents shall be taken
into account.

Where necessary, prepare a note on the outcome of the analysis indicating
possible deviating views from the parties involved and the pros and cons
of both granting and refusing access.

7.6 Drafting decision
Responsibility/Role
Draft the decision for full or partial rectification (full or partial access) or  ATD coordinator
for  confirmation  of  the  initial  decision.  Send  a  draft  of  the  decision  for
information to the Director and Head of Unit responsible at initial stage.

ATD contact person
The ATD contact persons shall provide the documents to be disclosed and
undertake the necessary redaction, if needed.

ATD coordinator
Circulate the decision for approval and send out the decision signed by the
ED.

7.7 Updating of ATD SP
Responsibility/Role
Upload records to the ATD SP.
ATD coordinator

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Document code:

WIN-0011.11

Security level:

Internal

Effective date:

21/09/2021
Processing of applications for access to documents

4.  Flowchart
N/A

5.  Definitions
Term or abbreviation
Definition
Access to information requests Requests not falling within the scope of the ATD Regulation.

Access to own file
Requests  made  in  accordance  with  Article  41(2)  of  the  Charter  of
Fundamental Rights of the European Union.
Applicant
A legal or natural person requesting access to documents under the
ATD Regulation.
ATD
Access to documents
ATD contact person(s)
Contact  persons  nominated  by  Directorates  for  ATD  coordination
purposes.
ATD coordinator
Staff  member  of  the  LAU  coordinating  the  processing  of  initial
applications for ATD.
ATD scientific expert
A  staff  member  of  the  competent  Unit/Directorate  trained  and/or
experienced  in  the  ATD  process,  competent  to  evaluate  the
application  of  the  exceptions  under  the  ATD  Regulation  from  a
scientific point of view.
BoA
Board of Appeal
Competent Unit/Directorate
Process-owner of the requested document.
ED
Executive Director
Competent HoU
Head of the competent Unit
LAU
Legal Affairs Unit
ATD SP
A dedicated SharePoint site used for recording and archiving records
relating to the initial and confirmatory applications.
Working day
All days other than Saturdays, Sundays and "ECHA holidays". ECHA
Holidays  are  determined  each  year  by  decision  of  the  Executive
Director and published on the ECHA website.
Working  day  for  a  third  party  shall  mean  all  days  other  than
Saturdays,  Sundays  and  public  holidays  in  a  Member  State  of  the
third party.

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Document code:

WIN-0011.11

Security level:

Internal

Effective date:

21/09/2021
Processing of applications for access to documents

6.  Records
Record name
Security level
Comments
Incoming Application
Restricted
Storage location: ATD SP
Acknowledgment of receipt
Restricted
Storage location: ATD SP
Initial decision
Restricted
Storage location: ATD SP
Incoming letter requesting the Executive
Restricted
Storage location: ATD SP
Director to review the initial decision
(i.e. confirmatory ATD application)
Decision of the Executive Director on the
Restricted
Storage location: ATD SP
confirmatory ATD application
Other external correspondence sent by
Restricted
Storage location: ATD SP
ECHA and/or received from external (if
any)

7.  References

Associated document code
Document name
Regulation (EC) No 1049/2001
Public access to European Parliament, Council and
Commission documents (“ATD Regulation”)
MB/12/2008 final
Decision on the implementation of Regulation (EC) No
1049/2001 on public access to ECHA documents as
amended by decision ED/04/2009 of 25 March 2009

8.  Annexes
N/A

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