Ref. Ares(2021)1198626 - 11/02/2021
EUROPEAN COMMISSION
Secretariat-General

Directorate C – Transparency, Efficiency & Resources
  The Director

Brussels
SG.C.1/TB
By registered mail with AR
Mr Alexander Fanta
netzpolitik.org
Rue de la Loi 155
1040 Brussels
Belgium
Copy by email:
ask+request-8895-
xxxxxxxx@xxxxxxxx.xxx
Subject:
Your application for access to documents – GESTDEM 2021/0012
Dear Mr Fanta,
I  refer  to  your  e-mail  of  1  January  2021,  registered  on  4  January  2021,  in  which  you
make  a  request  for  access  to  documents,  under  the  above-mentioned  reference  number.
Please accept our apologies for the late reply to your request.
1.
SCOPE OF YOUR REQUEST
You request access to, I quote:
‘All  text  message  exchanges  between  President  Ursula  von  der  Leyen  and  German
Chancellor Angela Merkel since the former assumed office in late 2019. The existence of
such  exchanges  has  recently  been  reported  in  the  press  [1].  My  request  should  also
include  other  exchanges  using  text  and  instant  messaging,  such  as  via  WhatsApp,
iMessage, Signal, etc.’
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
We regret  to  inform  you that the Commission does not  hold  any documents  that would
correspond to the description given in your application.
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.

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111

Article  2(3)  of  Regulation  (EC)  No  1049/2001  provides,  in  particular,  that  ‘[t]his
Regulation shall apply to all documents held by an institution, that is to say, documents
drawn up or received by it and in its possession, in all areas of activity of the European
Union’.
Indeed, the Commission’s definition of document to be registered is independent of the
medium in which the information is held. This is in line with the concept of ‘document’
developed by the European Court of Justice: ‘the [data in question] within the meaning of
Article  1(2)  of  Directive  96/9  exhibits  the  two  essential  characteristics  of  a  document
within  the  meaning  of  Article  3(a)  of  Decision  2004/258  [now  Regulation  (EC)  No
1049/2001], since it constitutes content stored in a medium.’1
However, as it was also observed by the Court, the institution is not generally obliged to
preserve  each  and  every  document:  ‘[i]t  should  be  recalled  that,  although  Regulation
No 1049/2001  is  applicable  even  when  […]  the  institution  concerned  no  longer  has  the
document to which access is requested and that the latter must answer the applicant and
justify  before  the  judge  its  refusal  of  access  on  this  basis,  the  said  regulation  cannot
oblige an institution to give access to a document which it no longer has.’2
Therefore, the Commission applies certain principles when registering documents. Please
note  that  as  set  out  in  Article  7(1)  of  Commission  Decision  of  6.7.2020  on  records
management  and  archives3,  ‘[d]ocuments  shall  be  registered  if  they  contain  important
information  which  is  not  short-lived  or  if  they  may  involve  action  or  follow-up  by  the
Commission or one of its departments’.
Accordingly, whether a document is considered a record or not depends on whether the
information is relevant to any of the Commission’s policies, is important and not short-
lived.  An  SMS  or  another  type  of  instant  messaging  is  by  its  nature  short-lived  and
informal. Thus, an SMS or another type of instant  messaging  might  qualify as  a record
only  in  very  exceptional  circumstances.  Within  the  scope  of  your  request,  the
Commission did not experience any such event that would have justified the application
of  its  record-keeping  policy  to  instant  messaging.  The  Commission  therefore  does  not
hold any document conforming to your access request.
Given  that  no  such  documents,  corresponding  to  the  description  given  in  your
application,  are  held  by  the  Commission,  the  Commission  is  not  in  a  position  to  fulfil
your request.
3.
MEANS OF REDRESS
In  accordance  with  Article  7(2)  of  Regulation  (EC)  No  1049/2001,  you  are  entitled  to
make a confirmatory application requesting the Commission to review this position.

1   Judgment of the General Court of 22 October 2011, Dufour v ECB, T-436/09, paragraph 103.
2   Judgment of the General Court of 26 April 2016, Strack v Commission, T-221/08, paragraph 66.
3   https://ec.europa.eu/info/sites/info/files/c_2020_4482_en.pdf
2

Such  a  confirmatory  application  should  be  addressed  within  15  working  days  upon
receipt  of  this  letter  to  the  Secretariat-General  of  the  Commission  at  the  following
address:
European Commission
Secretariat-General
Unit C.1. ‘Transparency, Document Management and Access to Documents’
BERL 7/076
B-1049 Brussels,
or by email to: xxxxxxxxxx@xx.xxxxxx.xx.
Yours sincerely,
Tatjana Verrier
Director

3
Electronically signed on 11/02/2021 17:47 (UTC+01) in accordance with article 11 of Commission Decision C(2020) 4482

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