Document zzLqkZqZxjgq3YQ43YMpyXakR

EUROPEAN COMMISSION DIRECTORATE-GENERAL DEFENCE INDUSTRY AND SPACE Ref. Ares(2024)1733648 - 06/03/2024 The Director-General Brussels 27.02.2024 Vicky Cann Rue d'Edimbourg 26, 1050 Brussels, Belgium ask+request-14143-14e24597@asktheeu.org Subject: Your application for access to documents - EASE 2024/0501 Dear Ms Cann, We refer to your request for access to European Commission documents registered on 26.01.2024 under the above-mentioned reference number. In your application you request access to the following documents: `I would like to request access to the following documents related to lobbying on PFAS, per and polyfluoroalkyl substances. In particular I would like: 1. A list of all meetings/ discussions since 1 January 2023 between officials and or Commissioners with businesses, trade associations, or think tanks where this topic was discussed. 2. Any records, minutes, preparatory briefings, or other notes of these meetings/discussions. 3. All correspondence since 1 January 2023, where this topic was discussed, exchanged between officials and or Commissioners with businesses, trade associations, or think tanks.' 1. SCOPE OF YOUR APPLICATION Your application concerns the following documents: 1. EU Policy Paper: BDI priorities for the EU legislative term 2024-2029. (Document 1) 2. W. L. Gore & Associates' Comments on Dossier Submitters' Draft EU REACH restriction on PFAS - request for derogation: Professional Apparel (Document 2) 3. W. L. Gore & Associates' Comments on Dossier Submitters' Draft EU REACH restriction on PFAS - request for derogation: Aerospace and Defence (Document 3) Commission europenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGI 4. Why fluoropolymers like PTFE are different to other PFAS - presentation (Document 4) 5. About Gore, the use of Fluoropolymers and why their continued use is justified - presentation (Document 5) 6. RE_ REACH et le secteur de la dfense 1 (Document 6) 7. RE_ REACH et le secteur de la dfense 2 (Document 7) 8. REACH - PFAS restriction - meeting with industry (Document 8) 9. Final report, WTO/TBT Committee meeting - hybrid procedure - 8-10 November 2023 (Document 9) After having assessed the identified documents, DG DEFIS: Gives full access to Document 1, which is publicly available and retrievable on the Federation of German Industries' website (1). Gives partial access to Documents 2 and 3 on the basis of Article 4(2) (protection of the commercial interests of a natural or legal person, including intellectual property). Gives partial access to Documents 4-8 on the basis of Article 4(1)(b) (protection of privacy and the integrity of the individual). Refuses access to Document 9 on the basis of Article 4(1)(a) (protection of the public interest as regards public security, defence and military matters). Please see below our analysis. 2. ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001 2.1. Protection of the public interest as regards public security, defence and military matters. The first indent of Article(4)(a) of Regulation (EC) No 1049/2001 provides that "the institutions shall refuse access to a document where disclosure would undermine the protection of the public interest as regards public security (2)". The second indent of Article 4(1)(a) of Regulation (EC) No 1049/2001 provides that "the institutions shall refuse access to a document where disclosure would undermine the protection of the public interest as regards the defence and military matters." In accordance with the case-law of the Court of Justice, "a European Union institutions may take into account cumulatively more than one of the grounds for refusal set out in Article 4 of Regulation No 1049/2001 when assessing a request for access to documents held by it". In the present case, the exceptions relating to the protection of the public security and defence and military matters are closely connected. Indeed, undermining the public interest as regards defence and military matters would automatically lead to the undermining of public security. (1) https://english.bdi.eu/media/publications#/publication/news/meeting-european-challenges-with-acompetitive-industry (2) Judgment of the General Court of 13 September 2013, Netherlands v Commission, T-380/08, EU:T:2013:480, paragraphs 26 and 34. 2 As far as the interests protected by virtue of Article 4(1)(a) of Regulation (EC) No 1049/2001 are concerned, the Court of Justice has confirmed that it "is clear from the wording of Article 4(1)(a) [of Regulation (EC) No 1049/2001] that, as regards the exceptions to the right of access provided for by that provision, refusal of access by the institution is mandatory where disclosure of a document to the public would undermine the interests which that provision protects, without the need, in such a case and in contrast to the provisions, in particular, of Article 4(2), to balance the requirements connected to the protection of those interests against those which stem from other interests (3)". The Court of Justice stressed in the In `t Veld ruling that the institutions "must be recognised as enjoying a wide discretion for the purpose of determining whether the disclosure of documents relating to the fields covered by [the exceptions provided for in Article 4(1)(a) of Regulation 1049/2001] could undermine the public interest (4)". Consequently, "the Court's review of the legality of the institutions' decisions refusing access to documents on the basis of the mandatory exception [...] relating to the public interest must be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, the facts have been accurately stated, and whether there has been a manifest error of assessment of the facts or a misuse of powers (5)". Moreover, the General Court ruled that, as regards the interests protected by the abovementioned Article, "it must be accepted that the particularly sensitive and fundamental nature of those interests, combined with the fact that access must, under that provision, be refused by the institution 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 complexity and delicacy that call for the exercise of particular care. Such a decision requires, therefore, a margin of appreciation (6)". This was further confirmed by the Court of Justice (7). Documents 9 contains detailed information on matters related to strategic and organisational considerations on defence research and development actions that could potentially shape the future defence capabilities of the Member States. There is a reasonably foreseeable and not purely hypothetical risk that the disclosure of said documents would undermine the protection of public security and defence and military matters. Therefore, Documents 9 ought to be withheld. (3) Judgment of the Court of Justice of 1 February 2007, C-266/05 P, Sison v Council, EU:C:2007:75, paragraph 46. (4) Judgment of the Court of Justice of 3 July 2014, Council v In `t Veld, C-350/12, EU:C:2014:2039, paragraph 63. (5) Judgment of the General Court of 25 April 2007, WWF European Policy Programme v Council, T264/04, EU:T:2007:114, paragraph 40. (6) Judgment of the General Court of 11 July 2018, ClientEarth v European Commission, T-644/16, EU:T:2018:429, paragraph 23. See also Judgment of the Court of Justice of 3 July 2014, Council v In `t Veld, C-350/12, EU:C:2014:2039, paragraph 63. (7) Judgment of the Court of Justice of 19 March 2020, ClientEarth v European Commission, C-612/18 P, EU:C:2020:223, and paragraphs 68 and 83. 3 2.2. Protection of the privacy and the integrity of the individual, in particular in accordance with the Community legislation regarding the protection of personal data. In its judgment in the Bavarian Lager case, the Court of Justice ruled that when a request is made for access to documents containing personal data, Regulation (EC) 45/2014 becomes fully applicable (8). Any reference to Regulation (EC) 45/2014 are to be understood as references to Regulation (EU) 2018/1725, since Regulation (EU) 2018/1725 has repealed Regulation (EC) 45/2014. According to Article 3(1) of Regulation 2018/1725 (9), `personal data' means any information relating to an identified or identifiable natural person (`data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. Documents 4-8 identified as falling under the scope of your request contain personal data such as: - Names, functions and contact details of third parties and of Commission officials not having the function of senior management staff. This information constitutes personal data in the meaning of Article 3(1) of Regulation (EU) 2018/1725. Article 9(1)(b) of the Data Protection Regulation 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 (EC) No 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 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. Therefore, personal data have been redacted in the aforementioned documents. (8) Judgment of the Court (Grand Chamber) of 29 June 2010, Commission v Bavarian Lager, C-28/08 P, EU:C:2010:378, paragraph 63. (9) 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 (`Regulation (EU) 2018/1725'), OJ L 295, 21.11.2018, p. 39- 98. 4 2.3. Protection of the commercial interests of a natural or legal person, including intellectual property. Article 4(2) first indent of Regulation (EC) No 1049/2001 provides that `[t]he institutions shall refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property, [...] unless there is an overriding public interest in disclosure'. As regards Documents 2 and 3, respective redactions have been introduced by the originator of the documents - W.L.Gore & Associates. The originator considers full disclosure would undermine the protection of their commercial interests. The European Commission therefore partially discloses these two documents. 3. DISCLAIMER AND RE-USE OF DOCUMENTS Please note that information originating from third party is disclosed to you based on Regulation (EC) No 1049/2001. However, this disclosure is without prejudice to the rules on intellectual property, which may limit your right to reproduce or exploit the released documents without the agreement of the originator, who may hold an intellectual property right on them. The European Commission does not assume any responsibility from their reuse. You may reuse the disclosed information originating from the European Commission free of charge, for non-commercial and commercial purposes, provided that the source is acknowledged, that you do not distort the original meaning or message of the document. Please note that the Commission does not assume liability stemming from the reuse. 4. MEANS OF REDRESS In case you would disagree with this position, you are entitled, in accordance with Article 7(2) of Regulation (EC) No 1049/2001, to submit 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. You can submit it via your EASE portal (10) account, by mail, to: European Commission Secretariat-General Transparency, Document Management & Access to Documents (SG.C.1) BERL 7/076 B-1049 Bruxelles (10) https://www.ec.europa.eu/transparency/documents-request 5 or by email, to: sg-acc-doc@ec.europa.eu Yours faithfully, Timo Pesonen Director-General (e-signed) Enclosures: 1. EU Policy Paper: BDI priorities for the EU legislative term 2024-2029. 2. W. L. Gore & Associates' Comments on Dossier Submitters' Draft EU REACH restriction on PFAS - request for derogation: Professional Apparel - expunged from commercially sensitive information. 3. W. L. Gore & Associates' Comments on Dossier Submitters' Draft EU REACH restriction on PFAS - request for derogation: Aerospace and Defence - expunged from commercially sensitive information. 4. Why fluoropolymers like PTFE are different to other PFAS - presentation - expunged from personal data. 5. About Gore, the use of Fluoropolymers and why their continued use is justified - presentation - expunged from personal data. 6. RE_ REACH et le secteur de la dfense 1 - expunged from personal data. 7. RE_ REACH et le secteur de la dfense 2 - expunged from personal data. 8. REACH - PFAS restriction - meeting with industry - expunged from personal data. 6 Electronically signed on 05/03/2024 17:29 (UTC+01) in accordance with Article 11 of Commission Decision (EU) 2021/2121