Ref. Ares(2023)601775 - 26/01/2023
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR TRADE

  The Director-General
Brussels
TRADE/SW/B2 (2022) 9860270

Maximilian Henning
Eendrachtskade 12-35
9726 CW Groningen
The Netherlands

by email:

ask+request-12292-
xxxxxxxx@xxxxxxxx.xxx

Subject:
Your application for access to documents – GESTDEM 2022/7079

Dear Mr Henning,
I  refer  to  your  e-mail  of  7  December  2022  in  which  you  make  a  request  for  access  to
documents  under  Regulation  (EC)  No 1049/20011  (‘Regulation 1049/2001’),  registered
under the above-mentioned reference number.
1.  SCOPE OF YOUR REQUEST
In  your  request  you  ask  for  public  access  as  follows:  ‘Under  the  right  of  access  to
documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting the
flash reports on the WTO e-commerce negotiations since, and including, August’.
2.  ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
In accordance with settled case law, when an institution is asked to disclose a document,
it must assess, in each individual case, whether that document falls within the exceptions
to the right of public access to documents set out in Article 4 of Regulation 1049/2001.2

1   Regulation  (EC)  No 1049/2001  of  the  European  Parliament  and  of  the  Council  of  20 May 2001
regarding public access to European Parliament, Council and Commission documents (Official Journal
OJ L 145, 31.5.2001, p. 43).
2   Judgment  in  Sweden  and  Maurizio  Turco  v  Council,  Joined  cases  C-39/05 P  and  C-52/05 P,
EU:C:2008:374, point 35.

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
Office: CHAR 07/067 - Tel. direct line +32 229-60143

xxxxxx.xxxxxx@xx.xxxxxx.xx

Such  assessment  is  carried  out  in  a  multi-step  approach.  First,  the  institution  must  satisfy
itself that the document relates to one of the exceptions, and if so, decide which parts of it
are covered by that exception. Second, it must examine whether disclosure of the parts of
the  document  in  question  would  undermine  the  protection  of  the  interest  covered  by  the
exception. Third, the risk of that interest being undermined must be ‘reasonably foreseeable
and  not  purely  hypothetical’3.  If  the  institution  takes  the  view  that  disclosure  would
undermine  the  protection  of  any  of  the  interests  defined  under  Article 4(2)  of
Regulation 1049/2001,  the  institution  is  required  ‘to  ascertain  whether  there  is  any
overriding public interest justifying disclosure’.4
In view of the objectives pursued by Regulation 1049/2001, notably to give the public the
widest  possible  right  of  access  to  documents5,  ‘the  exceptions  to  that  right  […]  must  be
interpreted and applied strictly’6.
We  have  been  able  to  identify  three  documents  corresponding  to  your  request.  The
identified  documents  are  listed  for  ease  of  reference  in  the  Annex.  For  each  of  the
documents,  the  Annex  provides  a  description  and  indicates  whether  parts  or  entire
documents are withheld and if so, on which grounds pursuant to Regulation 1049/2001.
Copies of the accessible documents are enclosed to this letter.
Having  examined  the  documents  requested  under  the  provisions  of  Regulation  (EC)  No
1049/2001  regarding  public  access  to  documents,  these  documents  may  be  partially
disclosed. Some parts of the documents have been redacted as their disclosure is prevented
by  exceptions  to  the  right  of  access  laid  down  in  Article  4.1(a)  and  Article  4.1(b)  of  this
Regulation.
2.1.
Protection of the public interest as regards international relations
Article 4(1)(a),  third  indent  of  Regulation 1049/2001  provides  that  ‘[t]he  institutions
shall  refuse access  to  a document  where disclosure would  undermine the protection of:
the public interest as regards: […] international relations’.
According  to  settled  case-law,  ‘the  particularly  sensitive  and  essential  nature  of  the
interests  protected  by  Article 4(1)(a)  of  Regulation 1049/2001,  combined  with  the  fact
that  access  must  be  refused  by  the  institution,  under  that  provision,  if  disclosure  of  a
document  to  the  public  would  undermine  those  interests,  confers  on  the decision  which
must thus be adopted by the institution a complex and delicate nature which calls for the
exercise  of  particular  care.  Such  a  decision  therefore  requires  a  margin  of
appreciation’7. In this context, the Court of Justice has acknowledged that the institutions
enjoy  ‘a  wide  discretion  for  the  purpose  of  determining  whether  the  disclosure  of

3  Id.,  points 37-43.  See  also  judgment  in  Council  v  Sophie  in’t  Veld,  C-350/12 P,  EU:C:2014:2039,
points 52 and 64.
4   Id.,  points 37-43.  See  also  judgment  in  Council  v  Sophie  in’t  Veld,  C-350/12 P,  EU:C:2014:2039,
points 52 and 64.
5   Recital (4) of Regulation 1049/2001.
6   Judgment in Sweden v Commission, C-64/05 P, EU:C:2007:802, point 66.
7   Judgment in Sison v Council, C-266/05 P, EU:C:2007:75, point 35.
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documents relating to the fields covered by [the] exceptions [under Article 4(1)(a)] could
undermine the public interest’8.
The  General  Court  found  that  ‘it  is  possible  that  the  disclosure  of  European  Union
positions in international negotiations could damage the protection of the public interest
as regards international relations’ and ‘have a negative effect on the negotiating position
of  the  European  Union’  as  well  as  ‘reveal,  indirectly,  those  of  other  parties  to  the
negotiations’9. Moreover, ‘the positions taken by the Union are, by definition, subject to
change  depending  on  the  course  of  those  negotiations  and  on  concessions  and
compromises  made  in  that  context  by  the  various  stakeholders.  The  formulation  of
negotiating positions may involve a number of tactical considerations on the part of the
negotiators,  including  the  Union  itself.  In  that  context,  it  cannot  be  precluded  that
disclosure  by  the  Union,  to  the  public,  of  its  own  negotiating  positions,  when  the
negotiating  positions  of  the  other  parties  remain  secret,  could,  in  practice,  have  a
negative effect on the negotiating capacity of the Union’10.
In this regard, the parts of the documents redacted under the exception provided in article
4.1(a)  of  the  above-mentioned  Regulation  include  the  position  of  several  WTO  members
participating  in  the  Joint  Statement  Initiative  on  e-commerce  at  the  WTO.  Disclosure  of
these parts would undermine the protection of international relations, as it would severely
affect the mutual trust necessary for conducting these international negotiations.
2.2.
Protection of personal data
A  complete  disclosure  of  the  identified  documents  is  also  prevented  by  the  exception
concerning  the  protection  of  privacy  and  the  integrity  of  the  individual  outlined  in
Article 4(1)(b) of Regulation 1049/2001, because they contain the following personal data:
-
the  names/initials  and  contact  information  of  Commission  staff  members  not
pertaining to the senior management;
Under Article 4(1)(b) of  Regulation 1049/2001, access to a document has to be refused,
if  its  disclosure  would  undermine  the  protection  of  ‘privacy  and  the  integrity  of  the
individual,  in  particular  in  accordance  with  European  Union  legislation  regarding  the
protection of personal data’.
The  currently  applicable  legislation  regarding  the  protection  of  personal  data  is
Regulation (EU) 2018/1725  of  the  European  Parliament  and  of  the  Council  of
23 October 201811 (‘Regulation 2018/1725’).
Article 3(1)  of  Regulation 2018/1725  states  that  personal  data  ‘means  any  information
relating  to  an  identified  or  identifiable  natural  person  […]’.  The  Court  of  Justice  has
indicated that any information, which by reason of its content, purpose or effect, is linked

8   Judgment in Council v Sophie in ‘t Veld, C-350/12P, EU:C:2014:2039, point 63.
9   Judgment in Sophie in’t Veld v Commission, T-301/10, EU:T:2013:135, point 123-125.
10   Id., point 125.
11   Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the
protection of natural persons with regard to the processing of personal data by the Union institutions,
bodies,  offices  and  agencies  and  on  the  free  movement  of  such  data,  and  repealing  Regulation  (EC)
No 45/2001 and Decision No 1247/2002/EC, OJ L 205, 21.11.2018, p. 39.
3

to a particular person is to be considered as personal data.12 Names, signatures, functions,
telephone numbers and/or initials pertaining to staff members of an institution are thus to
be considered personal data.13
Article 9(1)(b)  of  Regulation 2018/1725  does  not  allow  the  transmission  of  these
personal data, except if you prove that it is necessary to have the data transmitted to you
for a specific purpose in the public interest and where there is no reason to assume that
the legitimate interests of the data subject  might  be prejudiced.  In  your request,  you do
not  express  any  particular  interest  to  have  access  to  these  personal  data  nor  do  you  put
forward  any  arguments  to  establish  the  necessity  to  have  the  data  transmitted  for  a
specific purpose in the public interest.
Consequently,  I  conclude  that,  pursuant  to  Article 4(1)(b)  of  Regulation 1049/2001,
access  cannot  be  granted  to  the  personal  data  contained  in  the  requested  documents,  as
the  need  to  obtain  access  thereto  for  a  purpose  in  the  public  interest  has  not  been
substantiated  and  as  there  is  no  reason  to  think  that  the  legitimate  interests  of  the
individuals  concerned  would  not  be  prejudiced  by  disclosure  of  the  personal  data
concerned.
3.
DISCLAIMERS
Please  kindly  pay  attention  that  you  may  reuse  public  documents,  which  have  been
produced by the European Commission or by public and private entities on its behalf, based
on  Commission  Decision 2011/833/EU  of  12 December 2011  on  the  re-use  of
Commission  documents14.  You  may  reuse  the  documents  disclosed  free  of  charge  for
non-commercial  and  commercial  purposes,  provided  that  the  source  is  acknowledged,
and that you do not distort the original meaning or message of the documents. Please note
that the Commission does not assume any liability stemming from the reuse.
4.
POSSIBILITY OF A CONFIRMATORY APPLICATION
In  accordance  with  Article 7(2)  of  Regulation 1049/2001,  you  are  entitled  to  make  a
confirmatory  application  requesting  the  Commission  to  review  this  position.  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
Belgium

12   See judgment in Nowak, C-434/16, EU:T:2018:560, points 33 to 35.
13   Judgment  in  Chambre  de  commerce  et  d'industrie  métropolitaine  Bretagne-Ouest  (port  de  Brest)
v Commission, T-39/17, EU:T:2018:560, points 43 and 44.
14  OJ L 330, 14.12.2011, p. 39.
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or by email to: xxxxxxxxxx@xx.xxxxxx.xx
                                                                                         Yours sincerely,


                                                                                         Sabine WEYAND

Enclosures:
List of documents; documents (partially) released
5
Electronically signed on 25/01/2023 18:10 (UTC+01) in accordance with Article 11 of Commission Decision (EU) 2021/2121

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