annex
Dieses Dokument ist Teil der Anfrage „Meetings and Correspondence on Energy Charter Conference“
REPLY TO CONFIRMATORY APPLICATION 12/c/02/22,
made by email on 27 June 2022 and registered on the same day
The Council has considered the confirmatory application under Regulation (EC) No 1049/2001 of
the European Parliament and of the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43) (hereafter referred to
as "Regulation (EC) No 1049/2001") and Annex II to the Council's Rules of Procedure (Council
Decision 2009/937/EU, OJ L 325, 11.12.2009, p. 35) and has come to the following conclusion:
1. On 5 May 2022, the Applicant submitted the following request for access to documents
concerning the following information:
- List of all meetings the Council, Coreper or the Working groups had in connection to the
below mentioned Meetings of the Energy Charter Conference, including but not only
preparatory meetings and meetings with other contract parties.
- Minutes and other reports of these meetings.
- All correspondence including attachments (i.e. any emails, correspondence or telephone
call notes) as of the below mentioned Meetings of the Energy Charter Conference.
- All documents prepared for the meetings and exchanged in the course of the meetings
between the parties.
30th Meeting of the Energy Charter Conference (10 - 11 December 2019)
31st Meeting of the Energy Charter Conference (16 - 17 December 2020)
32nd Meeting of the Energy Charter Conference (14 December 2021)
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2. On 22 June 2022, the General Secretariat of the Council (GSC) replied to the Applicant. It
had identified 16 documents corresponding to his request and 14 documents were sent to
him on that day. The GSC indicated that external consultations were on-going for the two
remaining documents (i.e. MSG 1584/19 rev 5 and ST 14382/19) and that a decision on
these documents would be sent to him as soon as possible.
3. On 27 June 2022, the Applicant, without waiting for the decision of the GSC concerning the
two remaining documents, submitted a confirmatory application arguing that the GSC did
not mention the meetings of the Working Party on Energy held “[d]uring the period of my
question” to discuss the “modernisation of the Energy Charter Treaty” and adding “that
there will certainly be documents on these meetings, on the preparation, lists of participants
as well as minutes”.
4. On 4 July 2022, the GSC, as it had announced, sent an additional reply to the Applicant
concerning the two remaining documents, MSG 1584/19 Rev 5 and ST 14382/19. Partial
access was granted to the Message 1584/19 Rev 5, except for the parts which contain
personal data of a member of the Energy Charter Secretariat, pursuant to Article 4(1)(b) of
Regulation (EC) No 1049/2001, as disclosure of this information would undermine the
protection of privacy and the integrity of the individual in question.
Access was refused to document ST 14382/19, a Note of 20 November 2019 from the GSC
to Coreper/Council on the Energy Charter Conference. This Note contained the draft
conclusions drafted by the Energy Charter Secretariat in relation to the Review conducted in
accordance with Article 34(7) of the Energy Charter Treaty, and a draft budget for 2020-
2021. As explained to the Applicant, its disclosure would affect negatively the relations
between the Energy Charter Secretariat and the contracting parties of the Energy Charter
Treaty and would thus undermine the protection of the public interest as regards
international relations, under Article 4(1)(a), third indent, of Regulation (EC) No 1049/2001.
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5. On the same day, 4 July 2022, the GSC informed the Applicant that there was no mention of
“lists of participants” in his initial request and that if he wished to receive additional
documents to the ones that were mentioned in his initial request, he should submit another
initial request for access to documents. Until now, the Applicant has not done so.
6. Contrary to what the Applicant argues in his confirmatory application, the GSC did mention,
in its reply of 22 June 2022, the list of meetings in which the 30th Meeting of the Energy
Charter Conference (10 - 11 December 2019) and 31st Meeting of the Energy Charter
Conference (16 - 17 December 2020) were on the agenda. It also provided the Applicant
with 14 documents related to these meetings.
7. In its reply of 22 June 2022, the GSC also indicated that it had not identified documents
related to the 32nd Meeting of the Energy Charter Conference (14 December 2021) and it
pointed out that the debriefs on the meetings of the Energy Charter Conference are oral.
8. The Council would like to point out that by requesting, in his confirmatory application,
documents on “several meetings” that the Working Party on Energy held “to discuss the
modernisation of the Energy Charter Treaty”, the Applicant went beyond his initial request
for access, which concerned documents related to meetings held in connection to three
specific meetings of the Energy Charter Conference. In accordance with the case-law, a
confirmatory application can only be made in order to ask the institution concerned to
reconsider its initial position on the documents already requested and not to submit an
application for access to other documents. 1 The scope of the request for access can
therefore not be extended at the confirmatory stage. Any new documents can only be
requested in the context of a new initial request. In light of the above, only documents
falling within the scope of the initial application, as reproduced in point 1, have been
considered in the framework of this confirmatory application.
1
Judgment of the General Court of 10 February 2021, XC v Commission, T-488/18, EU:T:2021:76, paragraphs 168-169.
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9. The Council also wishes to reiterate that the Applicant submitted this confirmatory
application on 27 June 2022, without waiting to receive first the Council's reply regarding
the two remaining documents MSG 1584/19 Rev 5 and ST 14382/19. The latter decision
was sent to the Applicant on 4 July 2022. Given that the Applicant did not subsequently
request from the Council to assess his confirmatory application, submitted at an earlier point
in time, as covering also these two documents, nor did he submit another confirmatory
application in relation to those documents, the Council considers that its decision of
4 July 2022 to grant partial access and to refuse access, respectively, to these two documents
is not being challenged in the framework of the present confirmatory application, and
therefore does not undertake its review hereinafter in this reply.
10. In view of replying to this confirmatory application, further consultations of the relevant
department were carried out. The following additional documents were eventually
identified as corresponding to the request - the Council regrets that these were not identified
at the initial stage:
- Proposed lines to take for the 30th meeting of the Energy Charter Conference of
10 December 2019 (final with track changes);
- Idem (clean version);
- Proposed lines to take for the 31st meeting of the Energy Charter Conference of
16 December 2020 (final with track changes);
- Proposed lines to take for the 32nd meeting of the Energy Charter Conference of
4 December 2021 (final with track changes);
- Idem (clean version).
THE GENERAL CONTEXT OF THE REQUESTED DOCUMENTS
11. The Energy Charter Conference is an inter-governmental organisation which is the
governing and decision-making body for the Energy Charter process. It was established by
the Energy Charter Treaty (ECT) in 1994. All states or Regional Economic Integration
Organisations who have signed or acceded to the Treaty are members of the Conference.
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The Conference meets on a regular basis to discuss issues affecting energy cooperation
among the Treaty's signatories, to review the implementation of the provisions of the Energy
Charter Treaty and the Protocol on Energy Efficiency and Related Environmental Aspects
and to consider possible new instruments and joint activities within the Energy Charter
framework. Some topics are regularly on the agendas of these meetings, such as the annual
work programme, the budget and the priorities for the years to come.
12. The 30th Meeting of the Energy Charter Conference took place in Brussels on 10 and 11
December 2019 under the aegis of the Albanian Presidency. The meeting focused on
facilitating investment in renewables, diversification and efficiency. At that occasion, the
Contracting Parties confirmed that the modernisation of the ECT would be a top priority in
2021. They emphasised the unprecedented opportunity for the ECT modernisation to
promote innovative solutions by aligning the Treaty with the objectives of the Paris
Agreement.
13. The 31st Meeting of the Energy Charter Conference took place virtually on 16 and 17
December 2020 under the chairmanship of Azerbaijan. The main topics discussed during
that meeting were the modernisation of the ECT and the energy efficiency. The significance
of concerted efforts towards greater energy sustainability, in particular in light of the
ambitions of the ongoing Energy Charter Treaty modernization process, was especially
underlined.
14. The 32nd Meeting of the Energy Charter Conference took place virtually on 14 December
2021 under the chairmanship of Armenia. The main topics which were discussed during
this meeting were the budget and the programme of work for 2022-2023 as well as the
modernisation of the ECT.
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ASSESSMENT OF THE REQUEST UNDER REGULATION (EC) No 1049/2001
15. The additional documents which were identified as falling within the scope of the request
(mentioned in point 10 above) consist of draft proposed lines to take drawn up by the
Commission in view of the three abovementioned meetings of the Energy Charter
Conference.
16. As a preliminary remark, it is to be noted that both the Treaty on European Union (Article
16(8)) and the Treaty on the Functioning of the European Union (Article 15(2)) make a
distinction between legislative and non-legislative activities as regards the application of
transparency rules, with a high standard of transparency in the legislative domain. The
requested documents were not drawn up in the context of legislative activities, i.e. for the
adoption of acts which are legally binding in or for the Member States 2, therefore the wider
access which is referred to in recital 6 of Regulation (EC) No 1049/2001 does not apply in
the present circumstances.
17. The Council has scrutinised the content of the documents referred to in point 10 and has
conducted a consultation with the European Commission. In light of the reply from the
latter, the Council has come to the conclusion that access should be refused to these
documents, pursuant to Article 4(1)(a), third indent, of Regulation (EC) No 1049/2001,
since their disclosure would undermine the protection of the public interest as regards
international relations.
As for the nature of the exceptions pursuant to Article 4(1)(a) of Regulation (EC) No 1049/2001
18. The Council wishes to state from the outset that, according to the established case-law of the
Court of Justice, the public interest exceptions laid down in Article 4(1)(a) of Regulation
(EC) No 1049/2001 are subject to a different regime than the other exceptions included in
Article 4.
2
Article 12(2) of Regulation (EC) No 1049/2001.
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19. On the one hand, the Council must be recognised as “enjoying a wide discretion for the
purpose of determining whether the disclosure of a document to the public would undermine
the interests protected by [the] provision [of Article 4(1)(a) of Regulation (EC)
No 1049/2001]” 3.
20. On the other hand, once the Council has come to the conclusion that release would indeed
undermine the public interest in this area, it has no choice but to refuse access, because “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”. 4
21. Therefore, the Council enjoys a wide discretion in assessing the impact of the release of
documents on international relations but is barred from taking into account other legitimate
interests that might override the conclusion that giving access to a document would harm the
protected interest and granting access nonetheless. 5 It also follows from the above that the
Council has no choice but to refuse access to a document that falls within the scope of the
exception concerning international relations and whose publication would undermine the
public interest protected by it.
3
Judgments of the General Court of 11 July 2018, ClientEarth v Commission, T-644/16, EU:T:2018:429, paragraph 25, and of 27
November 2019, Izuzquiza and Semsrott v European Border and Coast Guard Agency (FRONTEX), T-31/18, EU:T:2019:815,
paragraph 65.
4
Judgment of 1 February 2007, Sison v. Council, C-266/05 P, paragraph 46, and similarly judgment of 12 September 2013,
Besselink v Council, T-331/11, EU:T:2013:419, paragraph 44.
5
See judgments of 7 February 2018, Access Info Europe v Commission, T‑851/16, EU:T:2018:69, paragraph 38 and the case-law
cited, and of 7 February 2018, Access Info Europe v Commission, T‑852/16, EU:T:2018:71, paragraph 38 and the case-law
cited.
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As for the risk to the protected interest under Regulation (EC) No 1049/2001
22. As already mentioned, the newly identified documents consist of proposed lines to take
drawn up by the Commission for the 30th, 31st and 32nd Meetings of the Energy Charter
Conference, which took place respectively in December 2019, 2020 and 2021. These
documents reflect an EU position on matters to be subsequently discussed within an
international organisation. In international and intergovernmental frameworks, the EU
shapes its position through coordination between its Member States. This implies a regular
and on-going flexible coordination process.
23. It is important to note that in such a context, with a direct impact on international relations,
the content of past periodic discussions of the EU Member States is also of relevance for
future discussions, especially as some topics are recurrently on the agenda of these
meetings. Moreover, it should be noted that the collective work aimed at achieving a
coordinated EU approach is an essential element of the effectiveness of the EU's position in
international fora.
24. The EU lines to take proposed in these documents are hence part of a broader EU
coordination process in an international context; but they also form the basis for internal
negotiations on the EU's strategy when preparing for further coordination of EU positions
for the meetings of the Energy Charter Conference.
25. Taking into account the issues dealt with in the requested documents and the objectives set
in relation to them, as part of the EU's preparation for the aforementioned meetings, the
Council considers that releasing to the public the information contained therein on planned
future developments and the suggested approach to be taken in this framework would affect
the effectiveness of, and thus jeopardise, the EU's coordination work ahead of upcoming
meetings.
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26. More specifically, the documents in question contain information about the Review
provided for in Article 34(7) ECT. In line with this article, the Energy Charter Conference
is required to review every five years its functions regarding the implementation of the
Treaty and Protocols. This five-yearly Review was conducted in 2019. The Review
Conclusions are still being discussed under the relevant Subsidiary Bodies in terms of
implementation and shall remain undisclosed according to the Conference’s decision. Any
unilateral disclosure of this information would prejudice the relations between the EU and
the other Contracting Parties to the Energy Charter Conference.
27. The documents also contain information related to the functioning of the Energy Charter
Conference, such as the draft budget, the draft programme of work, the appointment of the
Secretary-General and chairmanship. Any unilateral disclosure of this information would
also undermine the relations between the EU and the other Contracting Parties to the Energy
Charter Conference.
28. In addition, the proposed lines to take for the 31st and 32nd meetings of the Energy Charter
Conference also contain information about the modernisation of the ECT, which served to
establish the Union’s negotiation position. The negotiations on the modernised ECT are still
ongoing among the Contracting Parties to the ECT and they will not be completed until the
Energy Charter Conference officially adopts the amendments, in line with Article 42 of the
ECT. Disclosure of this information at this stage would consequently affect the current
discussions and their potential outcomes, and thus have a negative impact on the relations
between the EU and the other Contracting Parties to the Energy Charter Conference.
29. For all of the above reasons, it is considered that disclosure of the documents would
specifically and actually undermine the protection of the public interest as regards
international relations, the risk being reasonably foreseeable and not purely hypothetical. As
a consequence, access to the documents has to be refused pursuant to Article 4(1)(a), third
indent, of Regulation (EC) No 1049/2001.
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30. The possibility of releasing parts of the documents was also considered pursuant to Article
4(6) of Regulation (EC) No 1049/2001. However, as the information contained in each of
the documents forms an inseparable whole, the Council is unable to give partial access.
31. The Applicant is also informed that the Working Party on Energy did not produce minutes
or reports of the meetings listed in the reply of the GSC. In that regard, the Council would
like to recall that there is no legal obligation to establish minutes for all meetings held by the
Council’s preparatory bodies.
32. It is also recalled that the right of access to documents held by the institutions within the
meaning of Article 2(3) of Regulation (EC) No 1049/2001 applies only to existing
documents in the possession of the institution concerned. The Regulation does not oblige an
institution to create a document for which it has been asked to grant access but which does
not exist 6.
CONCLUSION
33. In light of the above, the Council states that access to the five documents which were
identified as falling within the scope of the request has to be refused pursuant to Article
4(1)(a), third indent, of Regulation (EC) No 1049/2001 (protection of the public interest as
regards international relations).
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6 Judgment of 2 October 2014, Case C-127/13 P, Strack v Commission, EU:C:2014:2250, paragraphs 38 and 46.
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